<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 6, 1996.
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DIGICON INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 76-0343152
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
</TABLE>
3701 KIRBY DRIVE, SUITE 112
HOUSTON, TEXAS 77098
(713) 526-5611
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------------
DIGICON INC. 1992 AMENDED AND RESTATED EMPLOYEE NONQUALIFIED
STOCK OPTION PLAN
DIGICON INC. 1992
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of Plans)
---------------------
RICHARD W. MCNAIRY
3701 KIRBY DRIVE, SUITE 112
HOUSTON, TEXAS 77098
(713) 526-5611
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
T. WILLIAM PORTER
PORTER & HEDGES, L.L.P.
700 LOUISIANA, SUITE 3500
HOUSTON, TEXAS 77002
(713) 226-0600
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share........................... 1,358,333 $12.1875 $16,554, 683.43 $5,708.51
================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the anti-dilution
provisions of the Plans.
(2) Pursuant to Rule 457(c), the registration fee is calculated on the basis of
the average of the high and low sale prices for the Common Stock on the
American Stock Exchange on August 1, 1996, which was $12.1875. Pursuant to
Rule 457(h), the registration fee is calculated with respect to the maximum
number of the registrant's securities issuable under the Plans.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The contents of the following documents filed by Digicon Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are incorporated into this registration statement (this
"Registration Statement") by reference:
(a) the Company's Annual Report on Form 10-K for the year ended July
31, 1995, as amended by Form 10-K/A filed July 14, 1996, and as amended by
Form 10-K/A2 filed July 19, 1996;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended October 31, 1995, January 31, 1996, and April 30, 1996;
(c) the Company's Current Reports on Form 8-K dated March 19, 1996,
and May 17, 1996; and
(d) the description of the Company's common stock, par value $.01 per
share (the "Common Stock"), set forth under the caption "Registrant's
Securities to be Registered" in the Company's registration statement on
Form 8-A, dated June 26, 1991, and all amendments and reports filed
thereafter for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") subsequent to the filing date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement 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 such documents. The Company will provide, without
charge, each participant in the Company's Amended and Restated 1992 Employee
Nonqualified Stock Option Plan and 1992 Stock Option Plan for Non-Employee
Directors, on written or oral request of such person, a copy (without exhibits,
unless such exhibits are specifically incorporated by reference) of any or all
of the documents incorporated by reference pursuant to this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company has only one class of stock outstanding, Common Stock, par
value $.01 per share. At July 18, 1996, of the 20,000,000 authorized shares of
Common Stock, there were 11,332,352 shares outstanding. Each share of Common
Stock has one vote on all matters presented to the stockholders. Subject to the
rights and preferences of any preferred stock, par value $.01 per share, which
may be designated and issued, the holders of Common Stock are entitled to
receive dividends, if and when declared by the board of directors, and are
entitled on liquidation to all assets remaining after the payment of
liabilities. The Common Stock has no preemptive or other subscription rights.
Outstanding shares of Common Stock are, and the shares of Common Stock offered
hereby when issued and paid for will be, fully paid and nonassessable. Since the
Common Stock does not have cumulative voting rights, and holders of more than
50% of the shares may, if they choose to do so, elect all of the directors and,
in that event, the holders of the remaining shares will not be able to elect any
directors. ChaseMellon Shareholder Services, L.L.C., Dallas, Texas, is the
transfer agent and registrar for the Common Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware permits
a corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed
II-1
<PAGE> 3
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action.
In a suit brought to obtain a judgment in the corporation's favor, whether
by the corporation itself or derivatively by a stockholder, the corporation may
only indemnify for expenses (including attorneys' fees), actually and reasonably
incurred in connection with the defense or settlement of the case, and the
corporation may not indemnify for amounts paid in satisfaction of a judgment or
in settlement of the claim. In any such action, no indemnification may be paid
in respect of any claim, issue or matter as to which such persons shall have
been adjudged liable to the corporation except as otherwise approved by the
Delaware Court of Chancery or the court in which the claim was brought. In any
other type of proceeding, the indemnification may extend to judgments, fines and
amounts paid in settlement, actually and reasonably incurred in connection with
such other proceeding, as well as to expenses (including attorneys' fees).
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable to
criminal actions and to actions brought by or in the name of the corporation.
The determination as to whether a person seeking indemnification has met the
required standard of conduct is to be made (i) by a majority vote of a quorum of
disinterested members of the board of directors, or (ii) by independent legal
counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (iii) by the stockholders.
The certificate of incorporation and bylaws of the Company require the
Company to indemnify the Company's directors and officers to the fullest extent
permitted under Delaware law, and to implement provisions pursuant to
contractual indemnity agreements the Company has entered into with its directors
and executive officers. The Company's Certificate of Incorporation limits the
personal liability of a director to the corporation or its stockholders to
damages for breach of the director's fiduciary duty.
The Company has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- -------------------- ------------------------------------------------------------------------
<S> <C>
*4.1 -- Specimen certificate for shares of the Company's common stock, par
value $.01 per share.
*4.2 -- Digicon Inc. Amended and Restated 1992 Employee Nonqualified Stock
Option Plan.
*4.3 -- Digicon Inc. 1992 Non-Employee Director Stock Option Plan.
*5.1 -- Opinion of Porter & Hedges, L.L.P.
*23.1 -- Consent of Deloitte & Touche LLP
*23.2 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1 opinion).
*24.1 -- Power of Attorney (included on the signature page hereto).
</TABLE>
- ---------------
* Filed herewith
II-2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
A. Undertaking to Update
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act, that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
(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.
B. Undertaking With Respect to Documents Incorporated by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Undertaking with Respect to Delivery of Documents
(1) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the documents constituting the prospectus, to each participant to
whom such prospectus is sent or given, a copy of the registrant's annual report
to stockholders for its last fiscal year, unless such participant otherwise has
received a copy of such report in which case the registrant shall state in such
prospectus that it will promptly furnish, without charge, a copy of such report
on written request of the participant.
(2) The undersigned registrant hereby undertakes to transmit or cause to be
transmitted to all participants who do not otherwise receive such material as
stockholders of the registrant, at the time and in the manner such material is
sent to its stockholders, copies of all reports, proxy statements and other
communications distributed to its stockholders generally.
D. Undertaking With Respect to Indemnification
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 Commission such indemnification is
against public policy
II-3
<PAGE> 5
as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Stephen J. Ludlow and Richard W. McNairy, and
each of them, either 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 such
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 either of them, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 August 6, 1996.
DIGICON INC.
By: /s/ STEPHEN J. LUDLOW
----------------------------------
Stephen J. Ludlow, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the indicated capacities
and on the 6th day of August, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ DOUGLAS B. THOMPSON Director and Chairman of the Board
- ---------------------------------------------
Douglas B. Thompson
/s/ STEPHEN J. LUDLOW Director, President and Chief Executive
- --------------------------------------------- Officer
Stephen J. Ludlow
/s/ RICHARD W. McNAIRY Chief Financial Officer
- ---------------------------------------------
Richard W. McNairy
/s/ CHARLES H. ACKERMAN Principal Accounting Officer
- ---------------------------------------------
Charles H. Ackerman
/s/ GEORGE F. BAKER Director
- ---------------------------------------------
George F. Baker
/s/ CLAYTON P. CORMIER Director
- ---------------------------------------------
Clayton P. Cormier
/s/ STEVEN J. GILBERT Director
- ---------------------------------------------
Steven J. Gilbert
/s/ JACK C. THREET Director
- ---------------------------------------------
Jack C. Threet
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- -------------------- ------------------------------------------------------------------------
<C> <S>
*4.1 -- Specimen certificate for shares of the Company's common stock, par
value $.01 per share.
*4.2 -- Digicon Inc. Amended and Restated 1992 Employee Nonqualified Stock
Option Plan.
*4.3 -- Digicon Inc. 1992 Stock Option Plan for Non-Employee Directors.
*5.1 -- Opinion of Porter & Hedges, L.L.P.
*23.1 -- Consent of Deloitte & Touche LLP
*23.2 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1 opinion).
*24.1 -- Power of Attorney (included on the signature page hereto).
</TABLE>
- ---------------
* Filed herewith
<PAGE> 1
Exhibit 4.1
<TABLE>
<CAPTION>
Number Shares
<S> <C> <C>
DC
INCORPORATED UNDER THE LAWS [DIGICON LOGO] THIS CERTIFICATE IS TRANSFERABLE IN
OF THE STATE OF DELAWARE NEW YORK, N.Y. OR DALLAS, TX.
DIGICON INC.
COMMON STOCK
CUSIP 253804 30 6
THIS CERTIFIES THAT
SEE REVERSE FOR
CERTAIN DEFINITIONS
AND RESTRICTIONS
ON TRANSFER
is the owner of
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE OF $.01 EACH OF DIGICON INC.
transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of
this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be subject to all the
provisions of the Certificate of Incorporation of the Corporation (copies of which are on file with each Transfer Agent and
Registrar), as now or hereafter amended, to all of which the holder hereof by acceptance hereof assents. This Certificate is not
valid unless countersigned and registered by a Transfer Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
Dated:
/s/ ALLAN C. POGACH [DIGICON INC. SEAL] /s/ STEVEN J. LUDLOW
Secretary President
</TABLE>
*************************************************
* Countersigned and Registered: *
* CHEMICAL SHAREHOLDER SERVICES GROUP, INC. *
* Transfer Agent *
* and Registrar *
* *
* By: *
* *
* *
* *
* *
* Authorized Signature *
*************************************************
<PAGE> 2
The Corporation will furnish without charge to each stockholder who so
requests the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof of the
Corporation, and the qualifications, limitations, or restrictions of such
preferences and/or rights. Such request may be made to the Corporation or any
Transfer Agent and Registrar.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties ------- --------
JT TEN - as joint tenants with right of survivorship (Cust) (Minor)
and not as tenants in common under Uniform Gifts to Minors
Act
------------
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, the undersigned hereby sells, assigns and transfers unto
Please Insert Social Security or Other
Identifying Number of Assignee
[ ]
- --------------------------------------------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------- Shares
of the stock represented by the within certificate, and do hereby irrevocably constitute and appoint
- ------------------------------------------------------------------------------------------------------------ Attorney
to transfer the same on the books of the within named Corporation with full power of substitution in the premises.
Dated
-----------------------------------------
X
-----------------------------------------------------------
(SIGNATURE)
NOTICE:
THE SIGNATURE(S) TO
THIS ASSIGNMENT MUST
CORRESPOND WITH THE
NAME(S) AS WRITTEN
UPON THE FACE OF
THE CERTIFICATE IN X
EVERY PARTICULAR -----------------------------------------------------------
WITHOUT ALTERATION (SIGNATURE)
OR ENLARGEMENT OR
ANY CHANGE WHATEVER.
-----------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
-----------------------------------------------------------
SIGNATURE(S) GUARANTEED BY:
-----------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 4.2
DIGICON INC.
AMENDED AND RESTATED
1992 EMPLOYEE NONQUALIFIED STOCK OPTION PLAN
1. PURPOSE.
The purpose of this 1992 Employee Nonqualified Stock Option Plan (the
"Plan") of Digicon Inc. (the "Company") is to provide officers and other key
employees with a continuing proprietary interest in the Company. The Plan is
intended to advance the interests of the Company by enabling it (i) to increase
the interest in the Company's welfare of those members of management who share
the primary responsibility for the management, growth, and protection of the
business of the Company, (ii) to furnish an incentive to such persons to
continue their services to the Company, (iii) to provide a means through which
the Company may continue to induce able management personnel to enter its
employ, and (iv) to provide a means through which the Company may effectively
compete with other organizations offering similar incentive benefits in
obtaining and retaining the services of competent management personnel.
2. STOCK SUBJECT TO THE PLAN.
The Company may grant from time to time options to purchase shares of
the Company's authorized but unissued common stock, par value $.01 per share,
or treasury shares of the common stock. Subject to adjustment as provided in
Section 11 hereof, the aggregate number of shares which may be issued or
covered by options pursuant to the Plan is 1,158,333 shares, as adjusted for
the one for three reverse stock split effective January 17, 1995. Shares of
common stock applicable to options which have expired unexercised or terminated
for any reason may again be subject to an option or options under the Plan.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Compensation Committee
of the Company's board of directors (the "Committee"). The board of directors
may, from time to time, remove members from or add members to the Committee.
Vacancies in the Committee, however caused, shall be filled by the board of
directors. No member of the Committee shall be eligible to receive options
under the Plan. The Committee shall select one of its members chairman and
shall hold meetings at such times and places as it may determine. The
Committee may appoint a secretary and, subject to the provisions of the Plan
and to policies determined by the board of directors, may make such rules and
regulations for the conduct of its business as it shall deem advisable. A
majority of the Committee shall constitute a quorum. All action of the
Committee shall be taken by a majority of its members. Any action may be taken
by a written instrument signed by a majority of the members, and action so
taken shall be fully as effective as if it had been taken by a vote of the
majority of the members at a meeting duly called and held.
(b) Subject to the express terms and conditions of the Plan, the
Committee shall have full power to construe or interpret the Plan, to
prescribe, amend, and rescind rules and regulations relating to it and to make
all other determinations necessary or advisable for its administration.
<PAGE> 2
(c) Subject to the provisions of Sections 4 and 5 hereof, the
Committee may, from time to time, determine which employees of the Company or
subsidiary corporations shall be granted options under the Plan, the number of
shares subject to each option, and the time or times at which options shall be
granted.
(d) The Committee shall report to the board of directors the names
of employees granted options, and the number of option shares subject to, and
the terms and conditions of, each option.
(e) No member of the board of directors or of the Committee shall
be liable for any action or determination made in good faith with respect to
the Plan or any option.
4. ELIGIBILITY.
Only full-time salaried officers and other key personnel of the
Company and of its majority-owned subsidiaries shall be eligible to participate
in the Plan. In determining the employees to whom options shall be granted and
the number of shares to be covered by each option, the Committee may take into
account the nature of the services rendered by the respective employees, their
present and potential contributions to the success of the Company, and such
other factors as the Committee in its discretion shall deem relevant. The
Company shall effect the granting of options under the Plan in accordance with
the determination made by the Committee.
5. PRICE OF OPTIONS.
The option price per share shall be not less than the lesser of (i)
fair market value of the common stock on the date the option is granted or (ii)
the average fair market value for the common stock during the thirty trading
days ending on the trading day next preceding the date the option is granted.
Fair market value on any day shall be deemed to be the last reported sale price
of the common stock on the principal stock exchange on which the Company's
common stock is traded on that date. If no trading occurred on such date, or,
if at the time the common stock shall not be listed for trading, fair market
value shall be deemed to be the mean between the quoted bid and asked prices
for the common stock on such exchange or in the over-the-counter market, as the
case may be, on that date.
6. TERM OF OPTION.
No option shall be exercisable after the expiration of ten years from
the date the option is granted.
7. EXERCISE OF OPTIONS.
(a) General. Except as provided below, each option may be
exercised at such times and in such amounts as the Committee in its discretion
may provide. No option may be exercised prior to six months from the date of
grant.
(b) Manner of Exercising Options. Shares of common stock
purchased under options shall at the time of purchase be paid for in full. To
the extent that the right to purchase shares has
-2-
<PAGE> 3
accrued hereunder, options may be exercised from time to time by written notice
to the Company stating the full number of shares with respect to which the
option is being exercised, and the time of delivery thereof, which shall be at
least 15 days after the giving of such notice unless an earlier date shall have
been mutually agreed upon. At such time, the Company shall, without transfer
or issue tax to the optionee (or other person entitled to exercise the option)
deliver to the optionee (or to such other person) at the principal office of
the Company, or such other place as shall be mutually acceptable, a certificate
or certificates for such shares against prior payment of the option price in
full on the date of notice of exercise for the number of shares to be delivered
by certified or official bank check or the equivalent thereof acceptable to the
Company; provided, however, that the time of such issuance and delivery may be
postponed by the Company for such period as may be required for it with
reasonable diligence to comply with any requirements of law, the listing
requirements of the American Stock Exchange or any other exchange on which the
common stock may then be listed. If the optionee (or other person entitled to
exercise the option) fails to pay for all or any part of the number of shares
specified in such notice or to accept delivery of such shares upon tender of
delivery thereof, the right to exercise the option with respect to such
undelivered shares shall be terminated.
8. NON-ASSIGNABILITY OF OPTION RIGHTS.
No option granted under the Plan shall be assignable or transferable
otherwise than by will or by the laws of descent and distribution. During the
lifetime of an optionee, the option shall be exercisable only by him.
9. TERMINATION OF EMPLOYMENT.
Except as otherwise provided in this paragraph, options shall
terminate 90 days following the termination of the optionee's employment with
the Company for any reason, but shall be exercisable following termination only
to the extent that the option had become vested on the termination date. In
the event that the optionee retires from the Company (at or after normal
retirement age) the optionee shall have the right, subject to the provisions of
Section 6, to exercise his option at any time within one year after such
termination, to the extent that such option had become vested on the
termination date. If, however, the optionee shall die in the employment of the
Company, then for the lesser of the maximum period during which such option
might have been exercisable or one year after the date of death, his estate,
personal representative, or beneficiary shall have the same right to exercise
the option of such employee as he would have had if he had survived and
remained in the employment of the Company. For purposes of this Section 9,
employment by any majority-owned subsidiary corporation of the Company shall be
deemed employment by the Company.
In the discretion of the Committee, a leave of absence approved in
writing by the board of directors of the Company shall not be deemed a
termination of employment; however, no option may be exercised during such
leave of absence.
-3-
<PAGE> 4
10. CHANGE OF CONTROL.
If, at any time, a person, entity or group (including, in each case,
all other persons, entities or groups controlling, controlled by, or under
common control with or acting in concert or concurrently with, such person,
entity or group) shall hold, purchase or acquire beneficial ownership
(including, without limitation, power to vote) of 50% or more of the then
outstanding shares of the Company's common stock, then any portion of the
Options which have not yet become exercisable shall thereupon become
immediately exercisable, and, except with respect to the limitations set forth
in paragraph 6 hereof, the limitations set forth above as to the earliest date
at which an option may be exercised shall thereupon become null and void and of
no further effect whatsoever.
11. ADJUSTMENT OF OPTIONS ON RECAPITALIZATION OR REORGANIZATION.
The aggregate number of shares of common stock on which options may be
granted to persons participating under the Plan, the aggregate number of shares
of common stock on which options may be granted to any one such person, the
number of shares thereof covered by each outstanding option, and the price per
share thereof in each such option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of common stock of the
Company resulting from the subdivision or combination of shares or other
capital adjustments, or the payment of a stock dividend after the effective
date of this Plan, or other increase or decrease in such shares effected
without receipt of consideration by the Company; provided, however, that no
adjustment shall be made unless the aggregate effect of all such increases and
decreases occurring in any one fiscal year after the effective date of this
Plan will increase or decrease the number of issued shares of common stock of
the Company by 5% or more; and, provided, further, that any options to purchase
fractional shares resulting from any such adjustment shall be eliminated.
Subject to any required action by the stockholders, if the Company
shall be the surviving or resulting corporation in any merger or
consolidation, any option granted hereunder shall pertain to and apply to the
securities to which a holder of the number of shares of common stock subject to
option would have been entitled had such option been exercised immediately
preceding such merger or consolidation; but a dissolution or liquidation of the
Company, or a merger or consolidation in which the Company is not the surviving
or resulting corporation, shall cause every option outstanding hereunder to
terminate, except that the surviving or resulting corporation may, in its
absolute and uncontrolled discretion, tender an option or options to purchase
its shares on its terms and conditions, both as to the number of shares and
otherwise.
Adjustments under this Section shall be made by the Committee, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive.
12. AGREEMENTS BY OPTIONEE.
Each individual optionee shall agree:
(a) if requested by the Company, at the time of exercise of any
option, to execute an agreement stating that he is purchasing the shares
subject to option for investment purposes and not with a view to the resale or
distribution thereof;
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<PAGE> 5
(b) to authorize the Company to withhold from his gross pay any
tax which it believes is required to be withheld with respect to any benefit
under the Plan, and to hold as security for the amount to be withheld any
property otherwise distributable to the optionee under the Plan until the
amounts required to be withheld have been so withheld.
13. RIGHTS AS A SHAREHOLDER.
The optionee shall have no rights as a stockholder with respect to any
shares of common stock of the Company held under option until the date of
issuance of the stock certificates to him for such shares.
14. EFFECTIVE DATE.
The plan shall be effective as of September 1, 1992, if within one
year of that date it shall have been approved by the holders of a majority of
the shares of outstanding capital stock present at a duly called meeting of the
Company's stockholders at which a quorum is present.
15. AMENDMENTS.
(a) The board of directors may, from time to time, alter, suspend
or terminate the Plan, or alter or amend any and all option agreements granted
thereunder but only for one or more of the following purposes:
(1) to modify the administrative provisions of the Plan
or options; or
(2) to make any other amendment which does not materially
alter the intent or benefits of the Plan.
(b) It is expressly provided that no such action of the board of
directors may, without the approval of the stockholders, alter the provisions
of the Plan or option agreements granted thereunder so as to:
(1) increase the maximum number of shares as to which
options may be granted under the Plan either to all persons
participating in the Plan or to any one such person;
(2) decrease the option price applicable to any options
granted under the Plan, provided, however, that the provisions of this
clause (2) shall not prevent the granting, to any person holding an
option under the Plan, of additional options under the Plan
exercisable at a lower option price; or
(3) alter any outstanding option agreement to the
detriment of the optionee, without his consent.
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<PAGE> 6
16. EMPLOYMENT OBLIGATION.
The granting of any option under this Plan shall not impose upon the
Company any obligation whatsoever to employ or to continue to employ any
optionee, and the right of the Company to terminate the employment of any
officer or other employee shall not be diminished or affected by reason of the
fact that an option has been granted to him under the Plan.
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<PAGE> 1
EXHIBIT 4.3
DIGICON INC.
1992 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose of the Plan. The purpose of the Digicon Inc. 1992
Non-Employee Director Stock Option Plan ("Plan") is to attract the services of
experienced and knowledgeable non-employee directors and provide an opportunity
for ownership by such non-employee directors of the common stock, $.01 par
value ("Common Stock"), of Digicon Inc., a Delaware corporation ("Company").
2. Administration of the Plan. The Plan shall be administered by
the Board of Directors of the Company or any committee duly appointed thereby
("Board"). Subject to the terms of the Plan, the Board shall have the power to
interpret the provisions and supervise the administration of the Plan. All
decisions made by the Board pursuant to the provisions of the Plan shall be
made by a majority of its members at a duly held regular or special meeting or
by written consent in lieu of any such meeting.
3. Stock Reserved for the Plan. The maximum number of shares of
Common Stock which may at any time be subject to outstanding options issued
under the Plan is 600,000. The Company shall reserve for issuance pursuant to
the Plan such number of shares of Common Stock as may from time to time be
subject to options granted pursuant to the Plan. Should any option expire or
be canceled prior to its exercise in full, the shares theretofore subject to
such option may again be made subject to an option under the Plan.
4. Grant of Options. Each director of the Company who is not
otherwise an employee of the Company or any of the Company's subsidiaries (as
defined in Section 425(f) of the Internal Revenue Code of 1986, as amended)
(hereinafter referred to as an "Eligible Director") and who is a member of the
Board after October 31, 1992 (the "Effective Date") shall be granted on each
Date of Grant (as defined below) (provided that on such Date of Grant such
Eligible Director is a member of the Board) one option to acquire 10,000 shares
of Common Stock (the "Option"). No more than five Options shall be granted to
each Eligible Director. The exercise price per share of Common Stock of the
Option granted to an Eligible Director shall be the Fair Market Value of the
Common Stock on the Date of Grant.
For the purposes of this paragraph 4, the following terms shall have
the following meanings:
(x) "Date of Grant" means December 31 of each year after the
Effective Date on which an Eligible Director is a member of
the Board.
(y) "Fair Market Value" of a share of Common Stock on any date
shall be (i) the average of the closing sales price on the 30
preceding trading days of a share of Common Stock as reported
on the principal securities exchange on which shares of the
Common Stock have been listed or admitted to trading or (ii)
if not so reported, the average of the average closing bid and
asked prices for a share of Common Stock on the 30 preceding
trading days as quoted on the National Association of
Securities Dealers Automated
<PAGE> 2
Quotation System ("NASDAQ") or (iii) if not quoted on the
NASDAQ, the average of the average closing bid and asked
prices for a share of Common Stock on the 30 preceding trading
days as quoted by the National Quotation Bureau's "Pink
Sheets" or the National Association of Securities Dealers'
OTC Bulletin Board System. If the price of a share of Common
Stock shall not be so reported, the Fair Market Value of a
share of Common Stock shall be determined by the Board in its
absolute discretion.
5. Option Agreement. Each Option granted under the Plan shall be
evidenced by an agreement, in a form approved by the Board, which shall be
subject to the terms and conditions of the Plan. Any agreement may contain
such other terms, provisions and conditions as may be determined by the Board
and that are not inconsistent with the Plan.
6. Term of Options. Each Option granted will be exercisable as
to 100% of the shares of Common Stock covered by such Option at any time after
the later of (a) six months following the Date of Grant or (b) the first
anniversary of the Eligible Director's service on the Board; provided, however,
that no Option shall be exercisable after the expiration of six years from the
Date of Grant; and, provided further, that each Option shall be subject to
earlier termination, expiration or cancellation as provided in the Plan.
Notwithstanding any other provision to the contrary contained herein, no Option
shall be exercisable prior to the expiration of six months from the Date of
Grant of such Option.
7. Procedure for Exercise. Options shall be exercised by written
notice to the Company setting forth the number of shares of Common Stock with
respect to which the Option is to be exercised and specifying the address to
which the certificates for such shares are to be mailed. Such notice shall be
accompanied by cash or certified check, bank draft, or postal or express money
order payable to the order of the Company in an amount equal to the product
obtained by multiplying the Option exercise price times the number of shares of
the Common Stock with respect to which the Option is then being exercised. As
promptly as practicable after receipt of such written notification and payment,
the Company shall deliver to the optionee a certificate or certificates for the
number of shares with respect to which such Option has been so exercised,
issued in the optionee's name; provided, however, that such delivery shall be
deemed effected for all purposes when a stock transfer agent of the Company
shall have deposited such certificates in the United States mail, addressed to
the optionee, at the address specified pursuant to this paragraph 7.
8. Assignability. An Option shall not be assignable or otherwise
transferable except by will, by the laws of descent and distribution or
pursuant to a qualified domestic relations order ("QDRO") as defined by the
Internal Revenue Code of 1986, as amended, and the rules and regulations in
effect from time to time thereunder and Title I of the Employee Retirement
Income Security Act, as amended, and the rules and regulations in effect from
time to time thereunder. Each Option shall be exercised during the optionee's
lifetime only by the optionee.
9. Effect of Termination.
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<PAGE> 3
(i) In the event of the death of an optionee, the Options
granted to him may be exercised (to the extent he would have been entitled to
do so at the date of his death) at any time and from time to time prior to its
expiration by the executor or administrator of his estate or by the person or
persons to whom his rights under the Options shall pass by will or the laws of
descent and distribution, but in no event may the Option be exercised after its
expiration.
(ii) If an optionee ceases to be a director of the
Company, the Options granted to him may be exercised (to the extent he would
have been entitled to do so at the date that he ceases to be a director) at any
time and from time to time thereafter prior to the expiration of the Option.
(iii) No transfer of an Option by an optionee by will or by
the laws of descent and distribution or pursuant to a QDRO shall be effective
to bind the Company unless the Company shall have been furnished with written
notice of the same and an authenticated copy of the will, the QDRO and such
other evidence as the Board may deem necessary to establish the validity of the
transfer and the acceptance of the transferee or transferees of the terms and
conditions of such Option and the terms and provisions of the Plan.
10. No Rights as Stockholder. No optionee shall have any rights
as a stockholder with respect to shares covered by an Option until the date of
issuance of a stock certificate or certificates for such shares of Common
Stock.
11. Extraordinary Corporate Transactions. New options may be
substituted for the Options granted under the Plan, or the Company's duties as
to Options outstanding under the Plan may be assumed, by a corporation other
than the Company, or by a parent or subsidiary of the Company, or such
corporation, in connection with any merger, consolidation, acquisition,
separation, reorganization, liquidation or like occurrence in which the Company
is involved. Notwithstanding the foregoing or the provisions of paragraph 15
hereof, in the event such corporation, or parent or subsidiary of the Company
or such corporation, does not substitute new Options for, and substantially
equivalent to, the Options granted hereunder, or assume the Options granted
hereunder, the Options granted hereunder shall be canceled, immediately prior
to the effective date of such event, and, in full consideration of such
cancellation, and the optionee to whom the Option was granted shall be paid an
amount in cash equal to the excess of (i) the value, as determined by the Board
in its absolute discretion, of the property (including cash) received by the
holder of a share of Common Stock as a result of such event less (ii) the
exercise price of the Option.
12. Change of Control. If, at any time, a person, entity or group
(including, in each case, all other persons, entities or groups controlling,
controlled by, or under common control with or acting in concert or
concurrently with, such person, entity or group) shall hold, purchase or
acquire beneficial ownership (including without limitation power to vote) of
50% or more of the then outstanding shares of the Company's Common Stock, then
any portion of the Options which have not yet become exercisable shall
thereupon become immediately exercisable, and, except with respect to the
limitations set forth in paragraph 6 hereof, the limitations set forth above as
to the earliest date at which an option may be exercised shall thereupon become
null and void and of no further effect whatsoever.
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<PAGE> 4
13. Investment Representation. Each option agreement shall
contain an agreement that, upon demand by the Board for such a representation,
the optionee (or any person acting under paragraph (9(i)) shall deliver to the
Company at the time of any exercise of an option a written representation that
the shares to be acquired upon such exercise are to be acquired for investment
and not for resale or with a view to the distribution thereof or such other
representation as the Board deems advisable. Upon such demand, delivery of
such representation, prior to the delivery of any shares issued upon exercise
of an Option and prior to the expiration of the option period, shall be a
condition precedent to the right of the optionee or such other person to
purchase any shares.
14. Amendments or Termination. The Board may amend, alter or
discontinue the Plan; provided, however, that, without the approval of the
Company's stockholders, no amendment shall (i) increase the number of shares
subject to the Plan; (ii) modify the requirements as to eligibility for
participation in the Plan; or (iii) modify the number or time at which Options
may be granted.
15. Changes in Company's Capital Structure. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or
any issuance of Common Stock or any bonds, debentures, preferred or prior
preference stock ahead of or affecting the Common Stock or the rights thereof,
or the dissolution or liquidation of the Company, or any sale or transfer of
all or any part of its assets or business, or any reorganization or other
corporate act or proceeding, whether of a similar character or otherwise;
provided, however, that if the outstanding shares of Common Stock of the
Company shall at any time be changed or exchanged by declaration of a stock
dividend, stock split, combination of shares, or recapitalization, the number
and kind of shares then subject to any outstanding Option shall be
appropriately and equitably adjusted so as to maintain the proportionate number
of shares without changing the aggregate option price of any outstanding
Option.
16. Compliance with Other Laws and Regulations. The Plan, the
grant and exercise of Options thereunder, and the obligation of the Company to
sell and deliver shares under such Options, shall be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
governmental or regulatory agency or national securities exchange as may be
required. The Company shall not be required to issue or deliver any
certificates for shares of Common Stock prior to the completion of any
registration or qualification of such shares under any federal or state law, or
any ruling or regulation of any government body or national securities exchange
which the Company shall, in its sole discretion, determine to be necessary or
advisable.
17. Effective Date and Term of the Plan. The Plan was adopted by
the Board of Directors on October 29, 1992, subject to the approval by the
stockholders of the Company at its annual meeting on December 17, 1992, and in
accordance with applicable law, and the requirements of Rule 16b-3 promulgated
under Section 16(b) of the Exchange Act. No Option may be exercised prior to
the receipt of such approval.
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<PAGE> 1
EXHIBIT 5.1
August 6, 1996
Digicon Inc.
3701 Kirby Drive, Suite 112
Houston, Texas 77098
Re: Digicon Inc. Registration Statement on Form S-8; Amended and
Restated 1992 Employee Nonqualified Stock Option Plan and 1992
Non-Employee Director Stock Option Plan
Gentlemen:
We have acted as counsel to Digicon Inc., a Delaware corporation
("Company"), in connection with the preparation for filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended. The
Registration Statement relates to an aggregate of 1,358,333 shares (the
"Shares") of the Company's common stock, par value $.01 per share (the "Common
Stock"), issuable pursuant to the Company's Amended and Restated 1992 Employee
Nonqualified Stock Option Plan and the Company's 1992 Non-Employee Director
Stock Option Plan (the "Plans").
We have examined the Plans and such corporate records, documents,
instruments and certificates of the Company, and have reviewed such questions
of law as we have deemed necessary, relevant or appropriate to enable us to
render the opinion expressed herein. In such examination, we have assumed
without independent investigation the authenticity of all documents submitted
to us as originals, the genuineness of all signatures, the legal capacity of
all natural persons, and the conformity of any documents submitted to us as
copies to their respective originals. As to certain questions of fact material
to this opinion, we have relied without independent investigation upon
statements or certificates of public officials and officers of the Company.
Based upon examination and review, we are of the opinion that the
Shares have been duly and validly authorized and will, upon issuance and
delivery as contemplated by the Plans be validly issued, fully paid and
nonassessable outstanding shares of the Common Stock.
This Firm consents to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PORTER & HEDGES, L.L.P.
<PAGE> 1
Exhibit 23-1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
Digicon, Inc. on Form S-8 of our report dated October 12, 1995 (July 15, 1996
as to Notes 10, 20 and 21) appearing in the Annual Report on Form 10-K of
Digicon, Inc. for the year ended July 31, 1995, as amended by Form 10-K/A-2.
DELOITTE & TOUCHE LLP
Houston, Texas
August 6, 1996
