<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 28, 1998
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)
DELAWARE 75-1547355
(State or other jurisdiction (I.R.S Employer
of incorporation or organization) Identification No.)
9753 PINE LAKE DRIVE
HOUSTON, TEXAS 77055
(Address of Principal Executive Offices)
SERVICE AGREEMENTS WITH BARRY WEBB,
N.C. BUTLER AND IAN ARTHUR REED
(Full title of the plan)
KATIE-PAT BOWMAN
VICE PRESIDENT AND GENERAL COUNSEL
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
<TABLE>
<CAPTION>
===============================================================================================================================
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)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $1.25 par value 30,000 shares (2) $17.97 $539,100 $160
===============================================================================================================================
</TABLE>
(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 July 24, 1998.
(2) Includes the Common Stock purchase rights associated with the shares of
Common Stock being registered (the "Rights").
================================================================================
<PAGE> 2
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
(d) 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 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, 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 Company's stockholders would be equitable remedies, such as an
action to enjoin or rescind a
II-1
<PAGE> 3
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 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).
4.2 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).
II-2
<PAGE> 4
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 Form of Service Agreement dated January 25, 1991, Supplemental Service
Agreement dated May 28, 1996, and further amendment Agreement dated May
12, 1998, entered into between each of Barry Webb, N.C. Butler and Ian
Arthur Reed and Daniel Industries Ltd. (or its predecessors).
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 PricewaterhouseCoopers 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.
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
II-3
<PAGE> 5
(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.
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 Houston, Texas, on the 27th day of July, 1998.
DANIEL INDUSTRIES, INC.
By R.C. Lassiter
--------------------------
R.C. Lassiter
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints R. C. Lassiter and 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Ronald C. Lassiter Chief Executive Officer and Chairman of July 27, 1998
- --------------------------------------- the Board (Principal Executive Officer)
Ronald C. Lassiter
James M. Tidwell Executive Vice President and Chief July 27, 1998
- --------------------------------------- Financial Officer (Principal Financial
James M. Tidwell Officer)
Wilfred M. Krenek Controller (Principal Accounting Officer) July 27, 1998
- ---------------------------------------
Wilfred M. Krenek
Director July __, 1998
- ---------------------------------------
Nathan M. Avery
Director July __, 1998
- ---------------------------------------
Michael M. Carroll
</TABLE>
II-5
<PAGE> 7
<TABLE>
<S> <C> <C>
Ralph F. Cox Director July 27, 1998
- ---------------------------------------
Ralph F. Cox
Gibson Gayle, Jr. Director July 27, 1998
- ---------------------------------------
Gibson Gayle, Jr.
W.A. Griffin Chairman Emeritus and a Director July 27, 1998
- ---------------------------------------
W.A. Griffin
Thomas J. Keefe Director July 27, 1998
- ---------------------------------------
Thomas J. Keefe
Leo E. Linbeck, Jr. Director July 27, 1998
- ---------------------------------------
Leo E. Linbeck, Jr.
Brian E. O'Neill Director July 27, 1998
- ---------------------------------------
Brian E. O'Neill
</TABLE>
II-6
<PAGE> 8
INDEX TO EXHIBITS
EXHIBITS
- --------
4.1 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).
4.2 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 Form of Service Agreement dated January 25, 1991, Supplemental Service
Agreement dated May 28, 1996, and further amendment Agreement dated May
12, 1998, entered into between each of Barry Webb, N.C. Butler and Ian
Arthur Reed and Daniel Industries Ltd. (or its predecessors).
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).
<PAGE> 1
EXHIBIT 4.7
DATED JANUARY 25, 1991
SPECTRA-TEK UK LTD
- and -
[NAME]
------------------------------
SERVICE AGREEMENT
------------------------------
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
Clause No. Page No.
- ---------- --------
<S> <C>
1. DEFINITIONS 2
2. APPOINTMENT 3
3. TERM 3
4. DUTIES AND DEVOTION TO DUTIES 4
5. PLACE OF WORK/REPORTING STRUCTURE 5
6. REMUNERATION/BENEFITS 5
7. EXPENSES 6
8. MOTOR CAR 6
9. HOLIDAYS AND ILLNESS 7
10. INTELLECTUAL PROPERTY 8
11. CONFIDENTIALITY 8
12. DELIVERY UP OF DOCUMENTS 9
13. RESTRICTIONS 9
14. TERMINATION 11
15. PRIOR RIGHTS/SURVIVING CLAUSES 12
16. RESIGNATION OF OFFICES 12
17. WAIVER 13
18. BENEFIT 13
19. NOTICES 13
20. PRIOR AGREEMENTS 13
21. CONTINUOUS EMPLOYMENT 14
22. EMPLOYMENT PROTECTION (CONSOLIDATION)
ACT 1978 14
THE SCHEDULE 15
</TABLE>
<PAGE> 3
THIS AGREEMENT is made the day of 1991 BETWEEN
SPECTRA-TEK UK LTD, Swinton Grange, Malton, North Yorkshire, YO17 0QR
(hereinafter called "the Company") of the one part and [NAME AND ADDRESS]
(hereinafter called "the Employee") of the other part.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"the Board" means the Board of Directors of the
Company.
"the Commencement Date" means the first day of
February 1991.
"Confidential Information" means information relating to the
business, products, affairs and finances of the
Company or of any Group Company (including
without limitation accounting methods and
marketing information) for the time being
confidential to the Company or to the
respective Group Company or treated by the
Company or by the respective Group Company as
such and trade secrets (including without
limitation formulae, processes, methods,
inventions, technical data and know-how)
relating to the business of the company or of
any Group Company.
"Group Company" means and includes any company which is from
time to time (a) a holding company (as defined
by s.736 of the Companies Act 1985) of the
Company, or (b) a subsidiary company (as so
defined) of the Company, or (c) a subsidiary
company (as so defined) of a holding company of
the Company and "holding company" and
"subsidiary company" shall, when used
individually, be so defined.
<PAGE> 4
"termination date" means the effective termination date of the
employment hereunder as defined by the
Employment Protection (Consolidation) Act 1978.
"the Spectra-Tek Group" means Spectra-Tek International Limited
or any holding company of Spectra-Tek
International Limited or any subsidiary company
of Spectra-Tek International Limited or such
holding company (the expressions "holding
company" and "subsidiary company" being as
defined in s.736 of the Companies Act 1985).
1.2 Any reference in this Agreement to a statutory provision includes any
statutory modification or re-enactment of it or the provision to which
reference is made.
2. APPOINTMENT
The Company shall employ the Employee and the Employee shall serve the
Company as Financial Director or in such other capacity as the Company
may from time to time reasonably require.
3. TERM
3.1 The Employment of the Employee hereunder shall (subject as hereinafter
provided) commence on the commencement date and continue thereafter
unless and until terminated by the Company giving to the Employee not
less than three years' written notice of termination, or by the
Employee giving to the Company not less than one year's written notice
of termination provided that in any event the employment shall cease on
the last day of the month in which the employee attains the age of
sixty years.
3.2 In the following circumstances, the written notice which the Employee
is required to give to the Company will be reduced to three months:-
3.2.1 if more than 50% of the shares in Spectra-Tek International
Limited is acquired by a person other than Spectra-Tek Limited
or another company in the Spectra-Tek Group or Messrs.
Gibson, Butler, Webb and Reed;
<PAGE> 5
3.2.2 if any one or more of a competitor of the Spectra-Tek Group or
Mr. S.R. Greener or Mr. C.W. Shaw or any persons acting in
concert with them acquires effective control over the Board of
the Company or Spectra-Tek International Limited.
4. DUTIES AND DEVOTION TO DUTIES
4.1 The Employee shall well and faithfully serve the Company, use his
utmost endeavours to promote its interests, and shall comply with all
obligations and duties in relation to the Company placed on him by law
in his capacity as director. He shall assume such office, perform such
duties and exercise such powers in relation to the conduct and
management of the affairs of the Company and any Group Company that may
from time to time be assigned to or vested in him by or at the
direction of the Board and shall give to the Board such information
concerning the affairs of the Company and any Group Company as the
Board shall require and at all times shall conform to the reasonable
and lawful directions of the Board. Further, the Employee shall at all
times comply with all the rules and regulations of the Company for the
time being in force.
4.2 Without prejudice to the Employee's duty of fidelity to the Company and
to any Group Company, the Employee shall devote the whole of his time,
attention and abilities during normal business hours and at such other
times as the Company or his duties may reasonably require to the
business affairs of the Company and any Group Company unless prevented
by ill-health or injury from doing so.
4.3 The Employee shall not, either on his own account or as the Employee of
others or otherwise be engaged or concerned in any business or
engagement other than that of the Company or any Group Company except
with the prior written consent of the Board but the Employee may
nevertheless be or become a minority holder for investment purposes
only of any securities of any company provided that he does not hold
directly or indirectly more than 10 per cent of the securities of any
one company.
4.4 The Company shall be under no obligation to provide any work for the
Employee during any period of notice to terminate this Agreement given
either
<PAGE> 6
by the Company or the Employee. The Company may at any time during such
period suspend the Employee on full pay and benefits from his
employment or exclude him from the premises of the Company.
5. PLACE OF WORK
5.1 The Employee will work at the offices of the Company at Swinton Grange,
Malton, North Yorkshire or at such other places within reasonable daily
travelling distance of such offices as the Board may require from time
to time for the proper performance of his duties hereunder.
6. REMUNERATION/BENEFITS
6.1 The Company shall pay to the Employee during the continuance of his
employment a salary at the rate of (pound)44,000 per annum or such
higher rate as the Company shall from time to time decide. In the event
of any such increase of salary being notified by the Company to the
Employee such increase shall thereafter have effect as if it were
specifically provided for as a term of this Agreement. The said salary
shall unless otherwise agreed in writing include any sums receivable as
Director's fees or other remuneration from the Company or any Group
Company and shall accrue daily and be payable by equal monthly
instalments in arrears on the last day of each calendar month.
6.2 The Employee shall continue as a member of such appropriate schemes for
life assurance, permanent health insurance, medical expenses and
personal accident maintained by the Company upon and subject to the
rules and provisions of any such scheme.
6.3 The Company shall pay to the approved pension scheme of the Employee an
amount equal to 20% of the Employee's annual salary as specified in
sub-clause 6.1 above or such higher figure as may from time be
determined by the Company and notified to the Employee in writing. The
contributions shall be paid in 12 equal monthly parts in arrears at the
end of each calendar month.
<PAGE> 7
6.4 The Employee shall at the invitation of the Board and on terms which
the Board may prescribe, be eligible for membership of any profit
sharing scheme which may be introduced.
7. EXPENSES
The Employee shall be reimbursed by the Company all travel, hotel and
other out-of-pocket expenses reasonably and properly incurred by him in
the discharge of his duties subject to the production of any vouchers
or other evidence of such expenses as the Company may from time to time
reasonably require.
8. MOTOR CAR
8.1 The Company shall supply the Employee with a car deemed by the Board to
be suitable and commensurate with his status for the performance of his
duties hereunder the leasing or other rental or deferred purchase cost
of which shall not exceed (pound)1,200 per month (increasing annually
by the same percentage amount as the percentage increase in the United
Kingdom Retail Price Index for that period or at such other higher rate
as may be determined upon and notified by the Company to the Employee).
8.2 The Company shall pay such running costs in respect of such car as are
incurred while on Company business together with all insurance and
maintenance costs except where damage is incurred as a result of the
Employee's negligent use of the car. The Company shall permit the
Employee the use of such car for private use subject to any conditions
specified by the Company. The Employee shall ensure at all times that
when the car is driven on the road it is in the state and condition
required by the law of the country in which it is being driven and that
if so required a current test certificate is in force in respect of it.
The Employee shall ensure that he holds a current driving licence.
9. HOLIDAYS AND ILLNESS
9.1 In addition to United Kingdom statutory and other public holidays, the
Employee shall be entitled to thirty working days paid holiday and such
<PAGE> 8
additional paid holidays each year as may be agreed by the Board, to be
taken at times agreed by the Board.
9.2 Any unused entitlement shall not be carried forward into the following
holiday year without the consent of the Board and shall, in any event,
not be carried forward beyond the end of the following holiday year
(which expression shall mean 1st January to 31st December).
9.3 The Employee is entitled to be paid during any period of absence from
work due to sickness or injury, subject however to the provisions of
clause 14.2 and also subject to the right of the Company to deduct from
the remuneration of the Employee the amount of income benefit which he
is entitled to claim in consequence of sickness or accident under any
scheme for the time being in force of which by virtue of his employment
by the Company he is a non-contributory member:
9.4 In the event that the Employee is incapable of performing his duties by
reason of injury sustained wholly or partly as a result of actionable
negligence, nuisance or breach of any statutory duty on the part of any
third party, all payments made to the Employee by the Company by way of
remuneration shall to the extent that compensation is recoverable from
that third party constitute loans by the Company to the Employee
(notwithstanding that as an interim measure income tax has been
deducted from such payments as if they were emoluments of employment)
and shall be repaid when and to the extent that the Employee recovers
compensation for loss of earnings from that third party by action or
otherwise.
10. INTELLECTUAL PROPERTY
10.1 Any work in which copyright may subsist and any discovery invention
secret process or improvement in each case made or discovered by the
Employee during his employment ("Intellectual Property") shall
forthwith be disclosed to the Company.
10.2 Any Intellectual Property made or originated by the Employee in the
course of his normal duties or duties assigned to him and which relate
to the affairs of the company or any Group Company shall belong to and
be the absolute property of the Company.
<PAGE> 9
10.3 If and whenever required to do so by the Company the Employee shall
execute a formal assignment of all of his rights and at the expense of
the Company shall apply or join with the Company or its nominee in
applying for letters patent or other equivalent protection in the
United Kingdom and in any other part or parts of the world for any such
discovery invention process or improvement and shall at the expense of
the Company execute all instruments and do all things necessary for
vesting such letters patent or other equivalent protection when
obtained in the Company or its nominee.
10.4 The Employee will not seek to assert any Moral Rights (as defined in
Sections 77 and 80 of the Copyright Design and Patent Act 1988) against
the Company.
11. CONFIDENTIALITY
11.1 Given the nature of the work undertaken by the Company and the
involvement that the Employee will have in all aspects of the Company's
business, the Employee will have direct access to Confidential
Information the disclosure of which could be extremely damaging to the
business of the Company or any Group Company. In order to protect the
confidentiality of that information and without prejudice to every
other duty which the Employee has to keep secret all information given
to him or gained in confidence, the Employee recognises that the terms
of this clause are necessary and reasonable.
11.2 The Employee shall not either during the continuance of this Agreement
(otherwise than in the performance of his duties hereunder) or
thereafter, without the consent in writing of the Company first being
obtained, make use of in any way whether on his own account or on the
account of any other, or divulge to any person firm or company, and he
shall during the continuance of this Agreement use his best endeavours
to prevent the publication or disclosure of, any Confidential
Information which has or may come to his knowledge during the
continuance of this Agreement or previously or otherwise.
<PAGE> 10
12. DELIVERY UP OF DOCUMENTS
Upon the termination of this Agreement the Employee shall deliver up to
the Company or its authorised representatives all books, plans,
statistics, documents, computer discs, computer print-outs or computer
programmes or software, records, papers or property of whatsoever
nature which may be in his possession or control and relate in any way
to the business or affairs of the Company or of any Group Company and
no copies shall be retained by him.
13 RESTRICTIONS
13.1 During a period of one year following the termination of the Employee's
employment hereunder the Employee will not, whether by himself, by his
servants or agents or otherwise howsoever:-
13.1.1 be employed by, or enter into partnership with, employ or
attempt to employ or negotiate or arrange the employment or
engagement by any other person, firm or company of, any person
who to his knowledge was at the date of termination, or within
the period of two years preceding that date had been a senior
employee of the Company or of any Group Company;
13.1.2 directly or indirectly canvass or solicit or endeavour to
entice away from the Company the business of any person (a)
who at, or at any time during the period of two years prior
to, the termination date shall have to his knowledge been a
customer, client or agent of, or who has had any dealings
with, the Company or any Group Company and (b) with whom the
Employee shall had any contact in the normal course of his
employment during that period of two years, provided that
nothing in this sub-clause shall prohibit any activities of
the Employee which are not in direct or indirect competition
with any business carried on by the Company or by any Group
Company at the date of termination;
13.1.3 supply, carry out or undertake any product or service similar
to those offered by the Company or by any Group Company, in
respect of the provision of which the Employee was engaged to
a material extent during his employment with the Company to or
for any person (a) who at, or at any time during the period of
two years prior to, the termination date shall have, to his
knowledge, been a customer, client or agent of,
<PAGE> 11
or who was in the habit of dealing with, the Company or any
Group Company and (b) with whom the Employee shall have had
any contact in the normal course of his employment during that
period of two years.
13.2 At any time after the termination of his employment hereunder howsoever
occasioned the Employee shall not directly or indirectly represent
himself as being interested in or employed by or in any way connected
with the Company or with any Group Company.
13.3 If the Company or any Group Company shall have obtained any
confidential information from any third party under an agreement which
includes restrictions on disclosure known to the Employee the Employee
shall not, without the written consent of the Company, at any time
infringe such restrictions.
13.4 The Employee acknowledges that the duration, extent and application of
each of the restrictions in this clause are not greater than is
necessary for the protection of the interests of the Company or any
Group Company and if any of the restrictions are adjudged to go beyond
what is properly considered reasonable in all the circumstances but
would be adjudged reasonable if part or parts thereof was or were
deleted then the Employee agrees that the restrictions shall continue
to apply save for the deletion of the offending part or parts.
13.5 Each of the sub-clauses of Clause 13.1 and Clauses 13.2 to 13.4
inclusive above shall be deemed to constitute a separate agreement and
shall be construed independently of the others.
14. TERMINATION
14.1 In any of the following circumstances the Company may terminate this
Agreement by written notice taking effect on the date of its service in
which case the Employee shall not be entitled to any further payment
from the Company except such sums as shall then have accrued due:
14.1.1 if the Employee shall be guilty of any gross misconduct or
serious breach or non-observance of any of the provisions of
the Agreement or
<PAGE> 12
shall neglect or fail (otherwise than by reason of accident or
ill health) or shall refuse to carry out the duties required
of him hereunder or shall be guilty of any gross negligence in
relation to his duties hereunder;
14.1.2 if the Employee shall be guilty of a criminal offence and
sentenced (expect in a case not involving dishonesty) to a
term of imprisonment;
14.1.3 if the Employee shall commit any act of bankruptcy or shall
take advantage of any statute for the time being in force
offering relief for insolvent debtors;
14.1.4 if the Employee shall commit any other act which would
prohibit him by law from being a director.
14.2 If the Employee shall at any time become or be unable properly to
perform his duties hereunder by reason of ill-health accident or
otherwise for a period or periods aggregating at least 180 days in any
period of 12 consecutive calendar months the Company may by not less
than three month's notice in writing determine this Agreement but any
such notice of determination shall be given by the Company within three
months after such period or periods totalling 180 days.
15. PRIOR RIGHTS/SURVIVING CLAUSES
The expiration of or termination of this Agreement howsoever caused
shall not prejudice any claim which either party may have against the
other in respect of any antecedent breach of contravention of or
non-compliance with any provision hereof nor shall it prejudice the
coming into force or the continuance in force of any provision hereof
which is expressly or by implication intended to come into or continue
in force on or after such termination.
16. RESIGNATION FROM OFFICES
Upon the determination of this Agreement howsoever arising the Employee
shall at any time or from time to time thereafter upon the request of
the Company resign without claim for compensation from all offices held
by him
<PAGE> 13
in the Company and any Group Company and should he fail to do so the
Company is hereby irrevocably authorised to appoint some person in his
name and on his behalf to sign and execute all documents or things
necessary or requisite to give effect thereto provided that the
provisions of this clause shall be without prejudice to any claim which
the Employee may have otherwise in relation to the termination of his
employment.
17. WAIVER
Failure by either party to insist upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed to be a
waiver of such terms, covenants, or conditions nor shall any waiver or
relinquishment of any right or power hereunder at any time or times be
deemed to be a waiver or relinquishment of such right or power at any
other time or times.
18. BENEFIT
Except as otherwise herein expressly provided this Agreement shall
inure to the benefit of and be binding upon the Company its successors
and assigns, including but not limited to, any corporation which may
acquire all or substantially all the Company's assets and business or
with which the Company may be consolidated or merged.
19. NOTICES
Any notice hereunder shall be given in writing by either party to the
other and may be delivered or sent by registered post addressed in the
case of the Company to its Registered Office and in the case of the
Employee to his address last known to the Company and any such notice
shall in the case of delivery be deemed to have been served at the time
or delivery and in the case of posting at the expiration of twenty-four
hours after it has been placed in the Post Office.
20. PRIOR AGREEMENTS
This Agreement is in substitution for all previous contracts of service
express or implied between the Company or any Group Company and the
Employee,
<PAGE> 14
which shall be deemed to have been terminated by mutual consent from
the date hereof.
21. CONTINUOUS EMPLOYMENT
The previous employment of the Employee shall be reckoned as continuous
employment with the Company. Accordingly the Employee's period of
continuous employment with the Company shall be deemed to have
commenced on 3rd September 1973.
22. EMPLOYMENT PROTECTION (CONSOLIDATION) ACT 1978
Such additional particulars as are required in a statement of terms of
employment are contained in the Schedule which shall form a part of
this Agreement.
IN WITNESS whereof the parties hereto have executed this Agreement as a
Deed the day and year first above-written
SIGNED by )
[ ])
--------------------------------------------
a Director and by ) Director
[ ])
the Secretary/a Director )
duly authorised for and )
on behalf of )
--------------------------------------------
SPECTRA-TEK UK LIMITED ) Director/Secretary
SIGNED and DELIVERED by
[NAME] )
)
--------------------------------------------
in the presence of:
Witness:
--------------------------------------------
Address:
--------------------------------------------
Occupation:
--------------------------------------------
<PAGE> 15
THE SCHEDULE
PARTICULARS OF TERMS OF EMPLOYMENT
In accordance with the Employment Protection (Consolidation) Act 1978, the
following terms of the Director's appointment apply on the date of the Agreement
as provided therein:-
a) TITLE see Clause 2
b) REMUNERATION see Clause 6
c) HOURS OF WORK there are no fixed hours -
see Clause 4
d) HOLIDAYS see Clause 9
e) SICKNESS OR INJURY see Clause 9
f) PENSION there is no pension scheme
applicable to the Employee but the
Employee is a member of an
approved Pension Scheme to which
the Company has agreed to
contribute - see Clause 6.3
g) NOTICE see Clauses 3 and 14
h) DISCIPLINE AND GRIEVANCE
PROCEDURE there are no fixed disciplinary
rules applicable to this
appointment. In the event that the
Employee is dissatisfied with any
action against him or has any
grievance relating to his
employment, he should apply in the
first instance to the Chairman of
the Board, who will either propose
a solution or refer the matter to
the Board for its attention.
i) CONTINUOUS EMPLOYMENT the previous employment of the
Employee shall be reckoned as
continuous employment with the
Company - see Clause 21.
<PAGE> 16
DATED 1996
- --------------------------------------------------------------------------------
SPECTRA-TEK INTERNATIONAL LIMITED
and -
[NAME],
- --------------------------------------------------------------------------------
SUPPLEMENTAL SERVICE
AGREEMENT
- --------------------------------------------------------------------------------
Rollit Farrell & Bladon
Wilberforce Court
High Street
HULL HU1 1YJ
Tel: (01482) 323239
Fax: (01482) 326239
<PAGE> 17
THIS AGREEMENT is dated the 28th day of May 1996
B E T W E E N:-
SPECTRA-TEK INTERNATIONAL LIMITED whose registered office is at Swinton Grange,
Malton, North Yorkshire Y017 0QR ("the Company") and
[NAME AND ADDRESS] ("the Employee")
WHEREAS
(1) This Agreement is supplemental to a service agreement between
Spectra-Tek UK Limited and the Employee dated 25th January 1991 which
was varied by a Board Resolution dated 25th April 1991 ("the Service
Agreement").
(2) On the 1st April 1995 the Employee agreed that the Service Agreement
and his employment should be transferred to the Company which from that
date has been his employer. Since 1st April 1995 the Company has
provided the Employee's services to other Group Companies including
Spectra-Tek UK Limited.
(3) The Company and the Employee have agreed to vary the terms of the
Service Agreement as set out herein.
(4) The terms of this Agreement are subject to the completion of the
acquisition of the shares in the Company by Daniel International
Holdings Limited (a subsidiary company of Daniel).
IT IS HEREBY AGREED
1. Interpretation
1.1 Words and expressions which are defined in the Service
Agreement are to bear the same meaning in this Agreement and
for the avoidance of doubt all references to "the Company"
shall mean Spectra-Tek International Limited whether in this
Agreement or in the Service Agreement.
1.2 "Completion Date" shall mean the date the sale and purchase of
the shares in the Company is completed in accordance with
clause 4 of an agreement ("the Sale Agreement) dated 28 May
1996 for the acquisition of the shares in the Company by
Daniel International Holdings Limited.
1.3 "Daniel" shall mean Daniel Industries Inc
2. AMENDMENTS OF THE SERVICE AGREEMENT
2.1 Clause 3 of the Service Agreement shall be deleted in its
entirety and the wording set out below shall be substituted:-
1
<PAGE> 18
3.1 "The employment of the Employee shall commence on the
Completion Date and shall continue for a fixed term
of three years subject to clause 3.2 below
3.2 The Employee shall have the right to terminate this
agreement where there is a change of control (as
defined in clause 3.3) of the Company by giving
three months notice within three months of the event
which triggers the change of control.
3.3 For the purpose of clause 3.2 a change of control of
the Company shall be regarded as having occurred if:-
3.3.1. Any third party (or group of third parties
acting together) acquires control of the
composition of the Board of Directors of the
Company within the meaning of section 736
(2) of the Companies Act 1985 or
3.3.2. Any third party (or group of third parties
acting together) becomes entitled to
exercise more than 50% of the voting rights
attributable to the share capital of the
Company.
3.4 The Employee shall have the right to terminate this
agreement where there is a change of control (as
defined in clause 6 of this Agreement) of Daniel by
giving three months notice within three months of the
event which triggers the change of control.
3.5 The Employee has the right at any time during this
Agreement to terminate this agreement by giving three
months notice where an Event of Termination (as
defined in clause 7 of this Agreement) has occurred,
such notice to be given within three months of the
occurrence of the Event"
2.2 In clause 6.1 of the Service Agreement the figure of
(pound)44,000 (as subsequently increased to (pound)126,000)
shall be deleted and the figure of (pound)90,000 shall be
substituted. An additional sentence shall be added to clause
6.1 as follows:-
6.1 "The Company shall review the Employee's salary on
each anniversary of the Completion Date when it can
increase (but not decrease) the Employee's salary."
2.3 Clause 6.3 of the Service Agreement shall be deleted and the
following substituted:-
6.3 "The Company shall pay to the Employee's Approved
Pension Scheme an amount equal to 15% of the
Employee's annual salary as specified in sub-clause
6.1 above. The contribution shall be paid in 12 equal
monthly parts in arrears at the end of each current
month".
2
<PAGE> 19
2.4 Clause 6.4 of the Service Agreement shall be deleted and the
following substituted:-
6.4 "The Company will introduce a bonus plan with effect
from 1st April 1996 and the Employee will be eligible
for a bonus of up to 50% of his basic annual salary
half of which will be dependent on the Company's
achievement of its operational goals, (such goals to
be set by the Board) the other half being dependent
on the achievement by Daniel of its target earnings,
(such goals and targets to be set by the Chief
Executive of Daniel from time to time)."
2.5 In clause 8.1 of the Service Agreement the figure
of(pound)1,000 per month shall be substituted for the figure
of(pound)1,200
2.6 A new clause shall be added to the Service Agreement as
follows:
"The Company hereby undertakes that it will not save with the
express consent in writing of the Employee either during the
term of this Agreement or for a period of 50 years thereafter
make any alteration to the Rules, Constitution or otherwise of
the Employee's Approved Pension Scheme with the Company
whereby the benefits under the Scheme or the Rules under which
the benefits may be taken by the Employee shall be in any
manner varied"
3. This Agreement shall have full force and effect from the Completion
Date.
4. Save as set out herein the Company and the Employee confirm in all
respects the provisions of the Service Agreement.
5. CONSIDERATION FOR THE VARIATION
In consideration of the Employee agreeing to enter into certain
restrictions on competing against the Company and Daniel contained in
the Sale Agreement and the variations to his Service Agreement set out
in this Agreement, the Company has agreed:-
5.1 Within 30 days of this Agreement the Company shall pay to the
Employee the sum of (pound)50,000 (subject to such tax and
national insurance as the Company is obliged by law to deduct)
and
5.2 On each of 28 May 2000 and on 28 May 2001 (or if earlier on
the date on which a change of control of the Company or of
Daniel occurs) the Company shall pay to the Employee the sum
of (pound)50,000 (subject to such tax and national insurance
as the Company is obliged by law to deduct) and
3
<PAGE> 20
5.3 The Company undertakes to procure that Daniel issues to the
Employee 30,000 non-assessable shares of Daniel Common Stock
of $1.25 each (credited as fully paid) as follows:-
5.3.1 By issuing 10,000 shares on the Completion Date.
5.3.2 By issuing a further 10,000 shares on the 28 November
1997 and
5.3.3 By issuing the balance on the third anniversary of the
Completion Date
5.3.4 In the event of a change of control of the Company (as
defined in clause 3.3 above) any unissued shares shall
be immediately issued to the Employee
5.3.5 If a change of control of Daniel occurs as defined in
clause 6 any shares not issued immediately prior to
the date on which change of control becomes effective
shall be issued forthwith to the Employee.
5.4 If the Employee leaves the employment of the Company or dies
prior to any of the dates referred to in clauses 5.2 and 5.3
the following arrangements shall apply:
5.4.1 If the Employee dies then the said payments shall be
made and the tranches of shares shall be issued on the
dates referred to in clauses 5.2 and 5.3 but shall be
paid or granted as the case may be to the Employee's
Personal Representatives.
5.4.2 If the Employee ceases to be employed by the Company
for any of the reasons set forth in clause 7 any
payments not made or any shares not issued at the
effective date of termination shall be issued
forthwith to the Employee.
6. CHANGE IN CONTROL OF DANIEL
A "Change in Control of Daniel" shall have occurred if, after
the Completion Date:
6.1 a report on Schedule l2D shall be filed with the US
Stock Exchange Commission pursuant to Section l3(d) of
the US Exchange Act and that report discloses that any
person (within the meaning of Section l3(d) of the
Exchange Act), other than Daniel (or one of its
subsidiaries) or any employee benefit plan sponsored
by Daniel (or one of its subsidiaries), is the
beneficial owner (as that term is defined in Rule
l3d-3 under the Exchange Act), directly or indirectly,
of 20 percent or more of the outstanding Voting Stock;
6.2 any person (within the meaning of Section l3(d) of the
Exchange Act), other than Daniel (or one of its
subsidiaries) or any
4
<PAGE> 21
employee benefit plan sponsored by Daniel (or one of
its subsidiaries), shall purchase securities pursuant
to a tender offer or exchange offer to acquire any
Voting Stock (or any securities convertible into
Voting Stock) and, immediately after consummation of
that purchase, that person is the beneficial owner
(as that term is defined in Rule l3d-3 under the
Exchange Act) directly or indirectly, of 20 percent
or more of the outstanding Voting Stock (such
person's beneficial ownership to be determined, in
the case of rights to acquire Voting Stock, pursuant
to paragraph (d) of Rule l3d-3 under the Exchange
Act);
6.3 the stockholders of Daniel shall approve (a) a merger
or consolidation of Daniel with or into any other
person, unless the sole purpose of the merger is to
Daniel domicile within the United States of America,
(b) any sale, lease, exchange or other transfer of
all or substantially all the assets of Daniel and its
consolidated subsidiaries, (c) the dissolution of the
Company, or (e) a transaction immediately after the
consummation of which any person (within the meaning
of Section l3(d) of the Exchange Act), directly or
indirectly, of more than 50 percent of the
outstanding Voting Stock; or
6.4 during any period of 12 consecutive months, the
individuals who at the beginning of that period
constituted the Board of Directors of Daniel shall
cease to constitute a majority of the Board of
Directors.
7. TERMINATION
An "Event of Termination " shall have occurred if, after the
Completion Date, any of the following shall occur
7.1.1 the Company shall:
7.1.1.1 assign to the Employee any duties inconsistent with
the Employee's position (including offices, titles
and reporting requirements), authority, duties or
responsibilities with the Company in effect
immediately prior to the date of this Agreement;
7.1.1.2 remove the Employee from, or fail to re-elect or
appoint the Employee to, any position with the
Company that was held by the Employee immediately
prior to the date of this Agreement, except that a
nominal change in the Employee's title shall not
constitute such an event;
7.1.1.3 take any other action that results in a material
diminution in such position, authority, duties or
responsibilities;
5
<PAGE> 22
7.1.1.4 reduce the Employee's basic annual salary provided
for by this Agreement (as may be increased from time
to time) ;
7.1.1.5 relocate the Employee's principal office more than 20
miles from Swinton Grange Malton North Yorkshire;
7.1.1.6 fail to continue in effect the profit sharing and
pension plan of the Company in which the Employee is
a participant by virtue of the Service Agreement and
this Agreement, unless an equitable arrangement
(embodied in a substitute or alternative plan) shall
have been made with respect to such profit sharing or
pension plan to continue the Employee's participation
in any such plan (or any substitute or alternative
plan) on substantially the same basis, both in terms
of the amount of benefits provided to the Employee
and the level of the Employee's participation
relative to other participants, as exist by virtue of
the Service Agreement and this Agreement;
7.1.1.7 fail to continue to provide the Employee with
benefits substantially similar to those enjoyed by
the Employee by virtue of the Service Agreement and
this Agreement ;
7.1.1.8 take any action that would directly or indirectly
materially reduce any other benefits that were
provided to the Employee by the Company by virtue of
the Service Agreement and this Agreement;
7.1.1.9 fail to provide the Employee with the number of paid
vacation days to which the Employee was entitled
7.1.1.10 do any other act or omit to do anything which amounts
to a significant breach going to the root of the
Employee's contract of employment or which shows an
intention no longer to be bound by one or more of the
essential terms of the contract
9. OPERATIVE LAW
This Agreement is governed by and shall be construed in accordance with
English Law.
IN WITNESS whereof this Agreement has been executed as a Deed by the Company and
the Employee the day and year first hereinbefore written.
EXECUTED as a deed by affixing the )
Common Seal of SPECTRA-TEK )
INTERNATIONAL LIMITED in the )
presence of the under named and )
delivered at the date hereof )
6
<PAGE> 23
Director
Secretary
SIGNED as a deed by the said )
[NAME] )
in the presence of the witness )
named below and delivered at the )
date hereof )
Witness
7
<PAGE> 24
THIS AGREEMENT is dated the twelfth day of May, 1998
BETWEEN:
DANIEL INTERNATIONAL LIMITED ("DIL") whose registered office is at Swinton
Grange, Malton, North Yorkshire YO17 0QR and
[NAME AND ADDRESS]
(the "Employee")
WHEREAS this Agreement is supplemental to a service agreement between
Spectra-Tek UK Limited and the Employee dated 25th January 1991, which was
varied by a Board Resolution dated 25th April 1991 (together hereinafter
described as "the Service Agreement") which was further varied by an agreement
dated 1st April 1995 under which the Employee agreed that the Service Agreement
and his employment should be transferred to Spectra-Tek International Limited
("the Company") and supplemented by a Supplemental Service Agreement dated the
28th day of May 1996 (the "Supplemental Agreement"); and
WHEREAS on the 30th April 1997 the Employee agreed that the Service Agreement
and the Supplemental Agreement and his employment should be transferred to
Daniel Europe Limited ("DEL") which from that date has been his employer; and
WHEREAS on the 11th May 1998 the Employee agreed that the Service Agreement and
the Supplemental Agreement and his employment should be transferred to DIL which
from that date has been his employer and which has provided his services to
other Group companies owned or controlled by DIL; and
WHEREAS all the service under the Service Agreement and under earlier agreements
between the Employee and DIL and its associate, subsidiary and holding companies
is continuous employment as defined by the Transfer of Undertakings (Protection
of Employment) Regulations 1981; and
WHEREAS, during the term of the Supplemental Agreement, Daniel may consider and
desire to effect certain shifts in the organisation and reporting lines within
the Daniel Measurement and Control Division ("M & C."), and, in connection with
that reorganisation, would like the flexibility of changing the responsibilities
and reporting lines of the Employee, provided that the Employee would not be
assigned functions or responsibilities within M & C that are inconsistent with
Employee's education, background or experience; and
WHEREAS the parties desire to amend the Supplemental Agreement to correct
certain provisions, to clarify Daniel's ability to change the responsibilities
of the Employee in connection with any restructuring of M & C, and to accelerate
(i) the issuance of the final 10,000 shares of Daniel Common Stock and (ii) the
payment of UK100,000 Pounds Sterling (through payment of the discounted present
value thereof), to which the Employee would be entitled under the Supplemental
Agreement, all as more fully set forth herein; IT IS HEREBY AGREED:
<PAGE> 25
1. Words and expressions which are defined in the Service Agreement or
Supplemental Agreement and not otherwise defined herein are to bear the
same meaning as they do in such other Agreements.
1.1 Daniel Measurement and Control shall mean the businesses and
operations of DIL and Daniel Measurement & Control, Inc. that are
engaged in the design, manufacture and sale of products (including
electronic instruments) and systems designed to measure the rates of
flow and accumulated volumes of liquids and gases, primarily for the
oil and gas industry; and
2. The Agreement shall have full force and effect upon the execution
hereof by each of DIL and the Employee (the "Effective Date").
3. Save as set out herein DIL and the Employee confirm in all respects the
provisions of the Service Agreement and Supplemental Agreement.
4. The first phrase of Section 6.1 of the Supplemental Agreement is hereby
revised to read as follows:
"a report on Schedule 13D shall be filed with the US Securities and
Exchange Commission pursuant to Section 13(d) of the US Securities
Exchange Act of 1934 (the "Exchange Act')....."
5. Section 6.3 of the Supplemental Agreement is hereby revised to read as
follows in its entirety:
"6.3 the stockholders of Daniel shall approve (a) a merger or
consolidation of Daniel with or into any other person, unless the sole
purpose of the merger is to change Daniel's domicile within the United
States of America, (b) any sale, lease, exchange or other transfer of
all or substantially all the assets of Daniel and its consolidated
subsidiaries, (c) the dissolution of Daniel, or (d) a transaction
immediately after the consummation of which any person (within the
meaning of Section 13(d) of the Exchange Act) would be the beneficial
owner (as defined in Section 13(d)), directly or indirectly, of more
than 50 percent of the outstanding Voting Stock; or"
6. Section 6.4 of the Service Agreement which was modified by Clause 2.4
of the Supplemental Agreement is hereby revised to read as follows in
its entirety:
"6.4 With effect from 1st January 1998, the Employee will be entitled
to participate in a bonus plan whereby he will be eligible for a bonus
of up to 50% of his basic annual salary, half of which will be
dependent on the achievement of operational goals set for that portion
of M & C for which he has primary responsibility (as communicated to
him by the President of M & C) and the other half of which will be
dependent on the achievement by Daniel of its target earnings, all of
such operational goals and target earnings shall be set by the Chief
Executive Officer of Daniel from time to time."
<PAGE> 26
7. Article 7 TERMINATION of the Supplemental Agreement is hereby revised
to read as follows in its entirety:
"An "Event of Termination" shall have occurred, if, after May 12th
1998, any of the following shall occur
7.1.1 DIL shall
7.1.1.1 assign to the Employee duties inconsistent with his
background, training or experience, or inconsistent with
those of a senior managerial position within M & C;
7.1.1.2 remove the Employee from, or fail to re-elect or appoint the
Employee to, any position as a director of DIL and its
associate and subsidiary companies that was held by the
Employee immediately prior to the date of this Agreement;
7.1.1.3 reduce the Employee's basic annual salary provided for by
the Supplemental Agreement (as may be increased from time to
time);
7.1.1.4 relocate the Employee's principal office more than 20 miles
from Swinton Grange, Malton, North Yorkshire;
7.1.1.5 fail to continue in effect the profit sharing and pension
plans of DIL in which the Employee is a participant by
virtue of the Service Agreement (as amended by the
Supplemental Service Agreement and this Agreement), unless
an equitable arrangement (embodied in a substitute or
alternative plan) shall have been made with respect to such
profit sharing or pension plan to continue the Employee's
participation in any such plan (or any substitute or
alternative plan) on substantially the same basis, both in
terms of the amount of benefits provided to the Employee and
the level of the Employee's participation relative to other
participants, as exist by virtue of the Service Agreement
(as amended by the Supplemental Service Agreement and this
Agreement);
7.1.1.6 fail to continue to provide the Employee with benefits
substantially similar to those enjoyed, or take any action
that would directly or indirectly materially reduce the
benefits enjoyed, by the Employee by virtue of the Service
Agreement (as amended by the Supplemental Service Agreement
and this Agreement);
7.1.1.7 fail to provide the Employee with the number of paid
vacation days to which the Employee was entitled;
7.1.1.8 do any other act or omit to do anything which amounts to a
significant breach going to the root of the Employee's
contract of employment or which shows an intention no longer
to be bound by one or more of the essential terms of the
contract."
8. In consideration for the Employee agreeing to the variations in the
Service Agreement and Supplemental Agreement set out in this Agreement,
DIL
<PAGE> 27
undertakes to procure that Daniel in accordance with its Guarantee to
the Employee separately given and dated 28th May 1996 (i) issues to the
Employee, within 15 business days of the Effective Date, the 10,000
shares of Daniel Common Stock referred to in Section 5.3.3 of the
Supplemental Agreement, which would not otherwise have been issuable to
the Employee until May 28, 1999, and (ii) pays to the Employee, within
15 business days of the Effective Date, (pound) Stg 83,837
(Eighty-three thousand eight hundred and thirty-seven Pounds
Sterling), net of any Employee's tax and national insurance as DIL is
obliged to deduct, in full and final satisfaction of the two
instalments of(pound)Stg 50,000 (Fifty thousand Pounds Sterling) that
would have been paid under Section 5.2 of the Supplemental Agreement
on May 28, 2000 and May 28, 2001, such(pound)Stg 83,837 representing
the discounted present value at 6.77% per annum (which is Daniel's
current cost of borrowing) of the two instalments (pound) Stg 50,000.
8. This Agreement is governed by and shall be construed in accordance with
English Law and any proceedings arising herefrom shall be within the
jurisdiction of the English Courts.
<PAGE> 28
IN WITNESS WHEREOF, this Agreement has been executed as a Deed by DIL and the
Employee the day and year first hereinbefore written.
EXECUTED as a deed by affixing the )
Common Seal of DANIEL )
INTERNATIONAL LIMITED in the )
Presence of the under named and )
Delivered at the date hereof )
Director
Director
SIGNED as a deed by the said )
[NAME] )
in the presence )
of the witness named below and )
delivered at the date hereof )
Witness
<PAGE> 1
EXHIBIT 5.1
LETTERHEAD OF DANIEL INDUSTRIES, INC.
July 27, 1998
Daniel Industries, Inc.
9753 Pine Lake Drive
Houston, Texas 77055
Gentlemen:
I have acted as counsel for Daniel Industries, Inc., a Delaware
corporation (the "Company"), in connection with its filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to the registration under the Securities
Act of 1933, as amended, of 30,000 shares of the Company's common stock, $1.25
par value per share, including the preferred share purchase rights associated
therewith (collectively, the "Shares"), to be offered upon the terms and subject
to the conditions set forth in the Service Agreements dated January 25, 1991,
Supplemental Service Agreements dated May 28, 1996, and further amendment
Agreements dated May 12, 1998, between each of Barry Webb, N.C. Butler and Ian
Arthur Reed and Daniel Industries Ltd. (or its predecessors) (collectively, the
"Plans").
I have examined (i) the Certificate of Incorporation and By-Laws of the
Company, each as amended to date, (ii) the Plans, (iii) the Registration
Statement, and (iv) such certificates, statutes and other instruments and
documents as I considered appropriate for purposes of the opinions hereafter
expressed.
In connection with this opinion, I have assumed the authenticity and
completeness of all records, certificates and other instruments submitted to me
as originals, the conformity to original documents of all records, certificates
and other instruments submitted to me as copies, the authenticity and
completeness of the originals of those records, certificates and other
instruments, and the correctness of all statements of fact contained in all
records, certificates and other instruments that I have examined.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the Plans, will be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Item 5.
Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
Katie-Pat Bowman
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EXHIBIT NO. 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 27, 1998, appearing on page
21 of Daniel Industries, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1997.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
July 27, 1998
