<PAGE> 1
As filed with the Securities and Exchange Commission on March 22, 1996
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
DANIEL INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 74-1547355
(State or other jurisdiction of incorporation or (I.R.S Employer Identification No.)
organization)
9753 PINE LAKE DRIVE,
HOUSTON, TEXAS 77055
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
DANIEL INDUSTRIES, INC.
1995 NON-EMPLOYEE
DIRECTORS' STOCK OPTION PLAN
THOMAS L. SIVAK
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)
------------------------------
Copies to:
GREGORY J. SERGESKETTER
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share (1) price (1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock, $1.25
par value (2) 170,000 shares (1) $13.9375 (3) $2,369,375 (4) $817.03
====================================================================================================================================
</TABLE>
(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the operation of the
anti-dilution provisions of the Plan.
(2) Includes the preferred stock purchase rights associated with the Common
Stock.
(3) 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 price
of a share of Common Stock on the New York Stock Exchange consolidated
reporting system on March 20, 1996 which was $13.9375.
This Registration Statement shall become effective in accordance with the
provisions of Section 8(a) of the Securities Act of 1933 and Rule 462
promulgated thereunder.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1995;
(c) The Company's Current Report on Form 8-K dated December 12,
1995;
(d) The description of the Common Stock set forth under the caption
"Description of Securities to be Registered" contained in the Company's
Registration Statement on Form 8-B dated May 26, 1988;
(e) The description of the Company's preferred share purchase rights
contained in the Company's Registration Statement on Form 8-A dated June 1,
1990; and
(f) The "Description of Common Stock and Rights" contained in the
Company's Registration Statement on Form S- 3 (Registration No. 33-40160).
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the
filing of this Registration Statement 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 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 Counsel
Certain legal matters in connection with the securities offered
hereby are being passed upon for the Registrant by Thomas L. Sivak, an
Executive Officer of and General Counsel to the Company.
Item 6. Indemnification of Directors and Officers
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 to the extent currently allowed under the Delaware General Corporation
Law. Except as set forth below, if a director were to breach such 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 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
II-1
<PAGE> 3
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. Under the
Company's Certificate of Incorporation, no director of the Company will be
liable to the Company or any of its stockholders for monetary damages for
breach of fiduciary duty, 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. 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.
Under Article IX of the Company's By-laws as currently in effect,
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 full extent permitted by
the Delaware General Corporation Law.
Under such law, to the extent that such person is successful on the
merits in defense of a suit or proceeding brought against him by reason of the
fact that he is or was a director or officer of the Company, or serves or
served any other enterprise or organization as such at the request of the
Company, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection with such action.
Under such law, if unsuccessful in defense of a third-party civil
suit or a criminal suit, or if such suit is settled, such a person shall be
indemnified against both (i) expenses, including attorneys' fees, and (ii)
judgments, fines and amounts paid in settlement 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, and, with respect to any criminal action, had no
reasonable cause to believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of
the Company, or where such suit is settled, such a person shall be indemnified
under such law only against expenses (including attorneys' fees) actually and
reasonably incurred in the defense or settlement of such suit 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 shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged liable to the Company unless and only to the extent the Court of
Chancery determines that, despite the adjudication of liability but in view of
all the circumstances, such person is fairly and reasonably entitled to
indemnity for such expenses.
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
maximum deductible of $200,000 per loss 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.
II-2
<PAGE> 4
Item 8. Exhibits
4.1 Plan and Agreement of Merger dated as of January 22, 1988, by
and between Daniel Industries, Inc., a Texas corporation
("Daniel Texas"), and Daniel Industries, Inc., a Delaware
corporation (the "Company"), filed as Exhibit 2.1 to the
Company's Registration of Securities of Certain Successor
Issuers on Form 8-B, 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 By-Laws of the Company, as amended through February 2, 1995,
filed as Exhibit 3.2 to the Company's Annual Report on Form
10-K for the year ended September 30, 1995 and hereby
incorporated by reference herein.
4.4 Certificate of Designation, Powers, Preferences and Rights of
Series A Junior Participating Preferred Stock filed as Exhibit
3.3 in the Company's Amendment to Application or Report on Form
8 amending the Company's Annual Report on Form 10-K for the
year ended September 30, 1990, and hereby incorporated by
reference herein.
4.5 Note 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.
4.6 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. 1995 Non-Employee Directors' Stock
Option Plan
5.1 Opinion of Thomas L. Sivak.
23.1 Consent of Thomas L. Sivak (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
24.1 Power of Attorney (contained on page II-5 hereof).
Item 9. 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;
II-3
<PAGE> 5
(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, each filing of the
registrant's annual report pursuant to section 13(a) or 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 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 6
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 the City of Houston, State of Texas, on March 18, 1996.
DANIEL INDUSTRIES, INC.
(Registrant)
By: /s/ Michael R. Yellin
------------------------------------------------
(Michael R. Yellin)
Vice President, Secretary and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints W. A. Griffin, III and Michael R. Yellin, and
each of them, either one of whom may act without joinder of the other, his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and
to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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
attorneys-in-fact and agents, and each of them, or the substitute or
substitutes of any or all of them, may lawfully do or cause to be done by
virtue hereof.
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.
<TABLE>
<CAPTION>
Name Title Date
----------------------------------------- -------------------------------------- -----------------------
<S> <C> <C>
/s/ Richard L. O'Shields Director March 6, 1996
--------------------------------
(Richard L. O'Shields)
/s/ W. A. Griffin, III Director, President and March 6, 1996
-------------------------------- Chief Executive Officer
(W. A. Griffin, III)
</TABLE>
II-5
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Henry G. Schopfer, III Vice President-Finance March 6, 1996
----------------------------------------- (Principal Financial Officer)
(Henry G. Schopfer, III)
/s/ Mary Beshears Controller March 6, 1996
-----------------------------------------
(Mary Beshears)
/s/ Ralph H. Clemons, Jr. Director March 6, 1996
-----------------------------------------
(Ralph H. Clemons, Jr.)
/s/ Gibson Gayle, Jr. Director March 6, 1996
-----------------------------------------
(Gibson Gayle, Jr.)
/s/ Ronald C. Lassiter Chairman of the March 6, 1996
----------------------------------------- Board of Directors
(Ronald C. Lassiter)
/s/ Leo E. Linbeck, Jr. Director March 6, 1996
-----------------------------------------
(Leo E. Linbeck, Jr.)
/s/ Ralph F. Cox Director March 6, 1996
-----------------------------------------
(Ralph F. Cox)
/s/ W. A. Griffin Director March 6, 1996
-----------------------------------------
(W. A. Griffin)
/s/ Brian E. O'Neill Director March 6, 1996
-----------------------------------------
(Brian E. O'Neill)
</TABLE>
II-6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.7 Daniel Industries, Inc. 1995 Non-Employee Directors' Stock Option Plan
5.1 Opinion of Thomas L. Sivak, General Counsel to the Company
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Thomas L. Sivak, General Counsel to the Company
(contained in Exhibit 5.1)
24.1 Power of Attorney (contained on page II-5 hereof)
</TABLE>
<PAGE> 1
EXHIBIT 4.7
<PAGE> 2
DANIEL INDUSTRIES, INC.
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1. PURPOSE.
This 1995 Non-Employee Directors' Stock Option Plan (this "Plan") of
Daniel Industries, Inc., a Delaware corporation (the "Company"), is adopted,
subject to stockholder approval to the extent required by Section 15 hereof,
for the benefit of the directors of the Company, including advisory directors
and directors who are full-time consultants to the Company, who at the time of
their service are not employees of the Company or any of its subsidiaries
("Non-Employee Directors"), and is intended to advance the interests of the
Company by providing the Non-Employee Directors with additional incentive to
serve the Company by increasing their proprietary interest in the success of
the Company.
2. ADMINISTRATION.
This Plan shall be administered by the Board of Directors of the
Company. All questions of interpretation and application of this Plan, or as
to options granted hereunder (the "Options"), shall be subject to the
determination by the Board of Directors, which determination shall be final and
binding. Notwithstanding the above, the selection of Non-Employee Directors to
whom Options are to be granted, the number of shares subject to any Option, the
exercise price of any Option and the term of any Option shall be as hereinafter
provided and the Board of Directors shall have no discretion as to such
matters.
<PAGE> 3
3. OPTION SHARES.
The stock subject to the Options and other provisions of this Plan
shall be shares of the Company's Common Stock, $1.25 par value per share (or
such other par value as may be designated by act of the Company's stockholders,
the "Common Stock"). The total amount of the Common Stock with respect to
which Options may be granted shall not exceed 170,000 shares in the aggregate;
provided, that the class and aggregate number of shares which may be subject to
the Options granted hereunder shall be subject to adjustment in accordance with
the provisions of Section 12 hereof. Such shares may be treasury shares or
authorized but unissued shares.
If any outstanding Option for any reason shall expire or terminate by
reason of the death of the optionee, the surrender of any such Option, or any
other cause, the shares of Common Stock allocable to the unexercised portion of
such Option may again be subject to an Option under this Plan.
4. GRANT OF OPTIONS.
Subject to the provisions of Section 5 hereof, there shall be granted
to each person who is a Non-Employee Director following the annual meeting of
stockholders of the Company on February 1, 1996, an Option to purchase 15,000
shares of the Common Stock at an Option Price equal to the closing sale price
per share, as reported on the New York Stock Exchange on such date.
For so long as this Plan is in effect and shares are available for the
grant of Options hereunder, each person who shall become a Non-Employee
Director after the February 1, 1996 annual meeting of stockholders shall be
granted, on the date of his initial election, an Option to purchase 15,000
shares of Common Stock at an Option Price equal to the closing sale price of a
share of Common Stock on that date as reported on the New York Stock Exchange;
provided that, if no sale of the Common Stock was reported on such date, then
the fair market value shall mean the closing sale price of a share of the
Common Stock as of the first preceding date for which such prices were
reported;
<PAGE> 4
and provided further that if the Common Stock is no longer traded on the New
York Stock Exchange, the Board of Directors may provide for another means for
determining the fair market value of a share of Common Stock on the date of
grant.
5. DURATION OF OPTIONS.
Subject to the vesting provisions of Section 6 hereof, each Option
granted under this Plan shall be exercisable for a term of ten years from the
date of grant, subject to earlier termination as provided in Section 9 hereof.
6. AMOUNT EXERCISABLE.
Each Option will be exercisable as follows:
(a) Beginning on the day after the first anniversary of the date of
grant, an Option may be exercised for up to 1/3 of the shares
subject to the Option;
(b) After the expiration of each succeeding anniversary date of the
date of grant, an Option may be exercised for up to an
additional 1/3 of the shares initially subject to the Option,
so that after the expiration of the third anniversary of the
date of grant, the Option shall be exercisable in full;
(c) To the extent not exercised, installments shall be cumulative,
and an Option may be exercised in whole or in part until it
expires on the tenth anniversary of the date of grant.
7. EXERCISE OF OPTIONS.
An optionee may exercise such optionee's Option by delivering to the
Company a written notice stating (i) that such optionee wishes to exercise such
Option on the date such notice is so
<PAGE> 5
delivered, (ii) the number of shares of stock with respect to which such Option
is to be exercised and (iii) the address to which the certificate representing
such shares of stock should be mailed. To be effective, such written notice
shall be accompanied by payment of the Option Price of each of such shares of
stock, together with the amount of any required withholding tax.
As promptly as practicable after the receipt by the Company of (i) such
written notice from the optionee, (ii) payment of the Option Price of the
shares of stock with respect to which such Option is to be exercised and (iii)
payment of an amount necessary to satisfy any withholding tax liability that
may result from the exercise of such Option, a certificate representing the
number of shares of stock with respect to which such Option has been so
exercised, such certificate to be registered in the name of such optionee,
shall be delivered to such optionee, provided that such delivery shall be
considered to have been made when such certificate shall have been mailed,
postage prepaid, to such optionee at the address specified for such purpose in
such written notice from the optionee to the Company.
8. TRANSFERABILITY OF OPTIONS.
Options shall not be transferable by the optionee otherwise than by
will or under the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code of 1986, as
amended (the "Code"), and shall be exercisable, during his lifetime, only by
the optionee.
9. TERMINATION OF SERVICE, DEATH AND CHANGE IN CONTROL.
In the event an optionee gives notice of his resignation from the Board
of Directors before the expiration of the Option, the Option shall terminate on
the earlier of the 30th day following the effective date of such resignation or
the expiration date of the Option.
<PAGE> 6
In the event an optionee gives notice that he does not intend to stand
for reelection or is given notice that he will be asked to retire from the
Board of Directors, then, notwithstanding Article 6 hereof, the Option shall
become exercisable with respect to all shares subject thereto, and the Option
shall terminate on the earlier of one year from the effective date of his
retirement from the Board or the date of expiration of the Option.
In the event of the death or disability of an optionee while a member
of the Board of Directors, then, notwithstanding Article 6 hereof, the Option
shall become exercisable with respect to all shares subject thereto and the
Option shall terminate on the earlier of one year from the date of such death
or disability or the date of expiration of the Option. After the death of the
optionee, his executors or administrators, or any person or persons to whom the
option may be transferred by will or by the laws of descent and distribution
shall have the right, at any time prior to the Option's termination, to
exercise the Option pursuant to the terms of the Plan.
If there shall occur a change in the control of the Company while any
shares of Common Stock remain subject to an outstanding Option, then the Option
shall terminate only upon the expiration of the Option without regard to the
other provisions of this Section 9. For purposes of this Plan, a "change in
control" of the Company shall mean a change in control of a nature that would
be required to be reported in response to Item 5(f) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934 (the
"Exchange Act") as in effect on the date hereof, provided, that, without
limitation, such a change in control shall be deemed to have occurred if (i)
any person, including a "person" as defined in Sections 13(d) (3) and 14(d)(2)
of the Exchange Act, is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Company's Board of Directors cease for any reason to
constitute at least a majority thereof.
<PAGE> 7
10. REQUIREMENTS OF LAW.
The Company shall not be required to sell or issue any shares under any
Option if the issuance of such shares shall constitute a violation by the
optionee or the Company of any provisions of any law or regulation of any
governmental authority. Each Option granted under this Plan shall be subject
to the requirements that, if at any time the Board of Directors of the Company
shall determine that the listing, registration or qualification of the shares
subject thereto upon any securities exchange or under any state or federal law
of the United States or of any other country or governmental subdivision
thereof, or the consent or approval of any governmental regulatory body, or
investment or other representations, are necessary or desirable in connection
with the issue or purchase of shares subject thereto, no such Option may be
exercised in whole or in part unless such listing, registration, qualification,
consent, approval or representation shall have been effected or obtained free
of any conditions not acceptable to the Board of Directors. If required at any
time by the Board of Directors, an Option may not be exercised until the
optionee has delivered an investment letter to the Company. In addition,
specifically in connection with the Securities Act of 1933 (as now in effect or
hereafter amended), upon exercise of any Option, the Company shall not be
required to issue the underlying shares unless the Board of Directors has
received evidence satisfactory to it to the effect that the holder of such
Option will not transfer such shares except pursuant to a registration
statement in effect under such Act or unless an opinion of counsel satisfactory
to the Company has been received by the Company to the effect that such
registration is not required. Any determination in this connection by the
Board of Directors shall be final, binding and conclusive. If the shares
issuable on exercise of an Option are not registered under the Securities Act
of 1933, the Company may imprint on the certificate for such shares the
following legend or any other legend which counsel for the Company considers
necessary or advisable to comply with the Securities Act of 1933:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT of 1933 OR UNDER THE SECURITIES
LAWS OF
<PAGE> 8
ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT UPON SUCH
REGISTRATION OR UPON RECEIPT BY THE CORPORATION OF AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CORPORATION, THAT REGISTRATION
IS NOT REQUIRED FOR SUCH SALE OR TRANSFER."
The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended) and, if any shares are so registered, the Company may remove
any legend on certificates representing such shares. The Company shall not be
obligated to take any other affirmative action to cause the exercise of an
Option or the issuance of shares pursuant thereto to comply with any law or
regulation of any governmental authority.
11. NO RIGHTS AS STOCKHOLDER.
No optionee shall have rights as a stockholder with respect to shares
covered by his Option until the date of issuance of a stock certificate for
such shares; and, except as otherwise provided in Section 12 hereof, no
adjustment for dividends, or otherwise, shall be made if the record date
therefor is prior to the date of issuance of such certificate.
12. Changes in the Company's Capital Structure.
The existence of outstanding Options shall not affect in any manner the
right of the Company (i) to make any change in the Company's capital structure
or its business, (ii) to effect any merger or consolidation of the Company,
(iii) to issue any bonds, debentures or other evidences of indebtedness, (iv)
to issue any preferred stock or any other securities affecting the Common Stock
or the rights of the holders thereof, (v) to cause the dissolution of the
Company or any sale or transfer of all or any part of the assets or business of
the Company, or (vi) to take any other corporate action or proceeding, whether
of a similar character or otherwise.
<PAGE> 9
If the Company shall effect a reclassification of shares of Common
Stock, the payment of a stock dividend to holders of shares of Common Stock, or
some other increase or reduction in the number of shares of Common Stock
outstanding without receiving compensation therefor in money, services or
property, then (i) the number, class and per share price of shares of Common
Stock issuable upon the exercise of any outstanding Option shall be
appropriately adjusted so that the optionee to whom such Option was granted
shall be entitled upon the exercise of such Option to receive, for the same
aggregate consideration, the same number and class of shares that such optionee
would have received had such optionee exercised such Option immediately prior
to the occurrence of the event requiring such adjustment and (ii) the aggregate
number of shares of Common Stock, and the class thereof, that may be issued
upon the exercise of Options that are not at the time outstanding shall be
adjusted by substituting for such number and class that number and class of
shares that would have been received by the holder of record of an equal number
of outstanding shares of Common Stock as the result of the occurrence of the
event requiring such adjustment.
After a merger of one or more corporations into the Company, or after a
consolidation of the Company and one or more corporations under circumstances
in which the Company is the surviving corporation, each holder of an
outstanding Option shall be entitled upon the exercise of such Option to
receive (subject to any required action by shareholders), in lieu of the number
of shares of Common Stock issuable upon the exercise of such Option, the number
and class of shares or other securities to which such holder would have been
entitled pursuant to the terms of the agreement of merger or consolidation if,
immediately prior to such merger or consolidation, such holder had been the
holder of record of a number of shares of Common Stock equal to the number of
shares of Common Stock issuable upon the exercise of such Option.
If the Company is merged into or consolidated with another corporation
under circumstances in which the Company is not the surviving corporation, or
if the Company dissolves, (i) subject to the provisions of clause (iii) of this
grammatical paragraph, after the effective date of such merger or
<PAGE> 10
consolidation, as the case my be, each holder of any outstanding Option shall
be entitled upon the exercise of such Option to receive, in lieu of shares of
Common Stock, such shares or other securities as the holders of shares of
Common Stock received pursuant to the terms of such merger or consolidation;
(ii) the Board of Directors of the Company, in its discretion, may waive any
limitations set forth in or imposed pursuant to Section 6 hereof so that all
outstanding Options shall be exercisable in full from and after a date prior to
the effective date of such merger, consolidation or dissolution. as the case
may be; and (iii) all outstanding Options may be canceled by the Board of
Directors as of the effective date of such merger, consolidation or
dissolution, provided that (x) notice of such cancellation shall be given to
each holder of an outstanding Option and (y) such holder shall have the right
to exercise such Option in full (without regard to any limitations set forth in
or imposed pursuant to Section 6 hereof) during the 30-day period immediately
preceding the effective date of such merger, consolidation or dissolution.
Except as in this Paragraph 12 expressly provided, the issue by the
Company of shares of any class, or securities convertible into shares of any
class, for money or services or property, either upon direct sale or upon the
exercise of rights or warrants to subscribe therefor or upon conversion of
shares or obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number, class or Option Price of any shares issuable upon
the exercise of any outstanding Option.
13. AMENDMENT OR TERMINATION OF PLAN.
The Board of Directors may modify, revise or terminate this Plan at any
time and from time to time; provided, however, that without the further
approval of the stockholders of the Company, the Board of Directors may not (a)
change the aggregate number of shares which may be issued under Options
pursuant to the provisions of this Plan; (b) reduce the Option Price permitted
for the Options; or (c) extend the term during which an Option may be exercised
or the termination date of this Plan unless, in each such case, the Board of
Directors of the Company shall have obtained an opinion of
<PAGE> 11
legal counsel to the effect that stockholder approval of the amendment is not
required (i) by law, (ii) by the rules and regulations of, or any agreement
with, the New York Stock Exchange or (iii) to make available to the optionee
with respect to any option granted under this Plan, the benefits of Rule 16b-3
of the Rules and Regulations under the Securities Exchange Act of 1934 (the
"1934 Act"), or any similar or successor rule. In addition, this Plan may not
be amended more than once every six months with respect to the plan provisions
referred to in Rule 16b-3(c)(2)(ii)(A) of the Rules and Regulations under the
1934 Act other than to comport with changes in the Code, the Employee
Retirement Income Security Act, or the rules thereunder.
14. WRITTEN AGREEMENT.
Each Option granted hereunder shall be embodied in a written option
agreement, which shall be subject to the terms and conditions prescribed above,
and shall be signed by the optionee and by the appropriate officer of the
Company for and in the name and on behalf of the Company. Such an option
agreement shall contain such other provisions as the Committee in its
discretion shall deem advisable.
15. EFFECTIVE DATE OF PLAN.
This Plan shall become effective and shall be deemed to have been
adopted on February 1, 1996, if within one year of that date either (i) it
shall have been approved by the stockholders of the Company or (ii) the Board
of Directors shall have received an opinion of legal counsel to the effect that
such approval is not required (a) by law, or (b) to make available to the
optionee with respect to the Option the benefits of Rule l6b-3 of the Rules and
Regulations under the 1934 Act. No Option shall be granted pursuant to this
Plan on or after February 1, 2006.
<PAGE> 1
EXHIBIT 5.1
<PAGE> 2
March 18, 1996
Daniel Industries, Inc.
9753 Pine Lake Drive
Houston, Texas 77055
Attention: Michael R. Yellin
Gentlemen:
I have acted on behalf of Daniel Industries, Inc., a Delaware corporation (the
"Company"), as Counsel, in connection with the registration under the
Securities Act of 1933 as amended, of 170,000 shares of the Company's Common
Stock, $1.25 par value (the "Shares"), and 170,000 preferred share purchase
rights of the Company issuable in connection with the issuance of the Shares
(the "Rights"), to be issued upon the terms and subject to the conditions set
forth in the Company's 1995 Non-Employee Directors' Stock Option Plan (the
"Plan"). In connection therewith, I have examined either the original or
copies of the Certificate of Incorporation of the Company, its By-laws, the
Rights Agreement dated as of May 31, 1990 between the Company and Wachovia Bank
and Trust Company, N.A., as Rights Agent, the Plan, the records of relevant
corporate proceedings with respect to the issuance of the Shares and the Rights
and such other documents and instruments I have deemed necessary or appropriate
for the expression of the opinions contained herein.
Based on the foregoing and having regard for such other legal considerations I
have deemed relevant, I am of the opinion that: (i) the Shares have been duly
authorized, and when issued in accordance with the terms of the Plan, will be
validly issued, fully paid and non-assessable and (ii) the Rights have been
duly authorized and, when the Shares have been issued in accordance with the
terms of the Plan, will be validly issued.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Thomas L. Sivak
Thomas L. Sivak
<PAGE> 1
EXHIBIT 23.1
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 21, 1995, appearing on page
18 of Daniel Industries, Inc.'s Annual Report on Form 10-K for the fiscal year
ended September 30, 1995.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Houston, Texas
March 11, 1996
