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As filed with the Securities and Exchange Commission on January 22, 1997
Registration No. 33- ________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ICO, INC.
(Exact name of Registrant as specified in its Charter)
TEXAS 75-1619554
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ICO, INC.
11490 WESTHEIMER, SUITE 1000
HOUSTON, TEXAS 77077
(281)721-4200
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
ICO, INC.
1996 STOCK OPTION PLAN AND
THE RESTATED 1993 NON-EMPLOYEE
DIRECTORS STOCK OPTION PLAN
Gary P. Kreider, Esq.
Keating, Muething & Klekamp
One East Fourth Street
Cincinnati, Ohio 45202
(513)579-6411
(Name, address, including zip code and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Each Proposed Maximum Proposed Maximum
Class of Securities Amount to Offering Price Aggregate Offering Amount of
to be Registered be Registered Per Share (1) Price (1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, 880,000 (2) 6.4375 $5,665,000 $1,717.00
No par value Shares
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(1) Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the registration fee; based on the average of the high and
low prices reported on the National Association of Securities Dealers
Automated quotations System-National Market System on January 17,
1997.
(2) This Registration Statement is filed for up to 800,000 shares of
Common Stock issuable upon exercise of options granted pursuant to the
ICO, Inc. 1996 Stock Option Plan and 80,000 shares of Common Stock
issuable upon exercise of options granted pursuant to the Restated
1993 Non-Employee Directors Stock Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by ICO, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated herein by reference and
made a part hereof:
1. The Company's Annual Report on Form 10-K for the Fiscal Year
ended September 30, 1996.
2. The description of the Company's Common Stock contained in a
Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on March 25, 1995.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all Common Stock offered has been sold or which deregisters all Common Stock
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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Article 2.02-1 of the Texas business Corporation Act provides:
(1) A corporation may indemnify any officer or director from and
against any judgments, penalties, fines, settlements, and
reasonable expenses actually incurred by him in an action, suit,
investigation or other proceeding to which he is, was, or is
threatened to be a party; provided that it is determined by the
board of Directors, a committee thereof, special legal counsel,
or a majority of the stockholders that such officer or director:
(a) acted in good faith; (b) reasonably believed that his conduct
was in the best interest of the corporation or was, in some
circumstances, not opposed to the corporations' interest, and (c)
in a criminal case, had no reasonable cause to believe his
conduct was unlawful. Such indemnity is limited to the
reasonable expenses actually incurred in matters as to which the
officer or director is found liable to the corporation or is
found liable on the basis that a personal benefit was improperly
received by him. No indemnification is permitted with respect to
any proceeding in which the officer or director is found liable
for willful or intentional misconduct in the performance of his
duty to the corporation.
(2) A corporation shall indemnify a director against reasonable
expenses incurred by him in connection with an action, suit,
investigation, or other proceeding to which he is, was, or was
threatened to be a party if he has been wholly successful in its
defense.
(3) A corporation may advance an officer or director the reasonable
costs of defending an action, suit, investigation or other
proceeding in certain cases.
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(4) A corporation shall have power to purchase and maintain insurance
on behalf of any person who 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 any liability asserted against him
and incurred by him in any such capacity or arising out of his
status as such, whether or not the corporation would have the
power to indemnify him against such liability under the
provisions of this Article.
Article 7, Section 7.01 of the Registrant's Bylaws provides for
indemnification of directors and officers, and such Article 7, Section
7.01 is hereby incorporated herein be reference.
The Registrant has purchased a directors and officers liability and
corporation reimbursement policy in the amount of $10,000,000 which,
subject to certain exceptions, protects the officers and directors of
the Registrant against liabilities arising from any claim for breach
of duty, neglect, error, misstatement, misleading statement, omission
or other act attempted, committed or allegedly committed by reason of
the director or officer acting in such capacity.
Article 302-7.06 of the Texas Miscellaneous Corporation Laws Act
permits a corporation to provide in its articles of incorporation that
a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for an act or
omission in the director's capacity as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation 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 any transaction from which the director
derived an improper personal benefit, or (iv) an act or omission for
which liability of a director is expressly provided by applicable
statute.
Article Twelve of the Articles of Incorporation of the Registrant
provides that to the full extent that the Texas Miscellaneous
Corporation Laws Act, as it now exists or may hereafter be amended,
permits the limitation or elimination of the liability of directors, a
director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as
a director. Any amendment to or repeal of such Article Twelfth shall
not adversely affect any right or protection of a director of the
Registrant for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4. Instruments defining the rights of security holders, including
indentures:
ICO, Inc. 1996 Stock Option Plan (Incorporated by reference to
Exhibit "A" to the ICO, Inc. Proxy Statement dated September 3,
1996)
ICO, Inc. Restated 1993 Non-Employee Directors Stock Option Plan.
(Incorporated by reference to Exhibit "B" to the ICO, Inc. Proxy
Statement dated September 3, 1996.)
5. Opinion re: Legality -- opinion of the Company's Senior Vice
President and General Counsel -- filed herewith.
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23. Consents of Experts and Counsel
23.1 Consent of the Company's Senior Vice President and General
Counsel is contained in its opinion filed as Exhibit 5 to
this Registration Statement.
23.2 Consent of Price Waterhouse LLP is filed herewith.
23.3 Consent of Coopers and Lybrand LLP is filed herewith.
24. Power of Attorney (see signature page of this Registration
Statement - Page 4)
Item 9. Undertakings
9.1 The undersigned Registrant hereby undertakes:
(a)(i) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement.
(a)(ii) 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
bonafide offering thereof.
(a)(iii) 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) That, for purposes of determining any liability under the
Securities Act of 1933, each filling of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bonafide offering
thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange commission such indemnification is
against public policy as expressed in the 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 Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Houston, Texas, on January 22, 1997.
ICO, INC.
By:/s/ Sylvia A. Pacholder
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Sylvia A. Pacholder,
President & Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. The persons whose names are marked with
an asterisk (*) below hereby designate Jon C. Biro as Attorney-In-Fact to sign
all amendments including any post-effective amendments to this Registration
Statement.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ Sylvia A. Pacholder President & January 22, 1997
- -------------------------------- Chief Executive Officer
Sylvia A. Pacholder * (Principal Executive Officer)
/s/ Asher O. Pacholder Chairman of the Board January 22, 1997
- -------------------------------- & Chief Financial Officer
Asher O. Pacholder * (Principal Financial Officer)
/s/ Robin E. Pacholder Senior Vice President January 22, 1997
- -------------------------------- and General Counsel
Robin E. Pacholder *
/s/ Jon C. Biro Senior Vice President & Treasurer January 22, 1997
- -------------------------------- (Principal Accounting Officer)
Jon C. Biro
/s/ William E. Cornelius Director January 22, 1997
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William E. Cornelius *
/s/ James E. Gibson Director January 22, 1997
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James E. Gibson*
/s/ Walter Leib Director January 22, 1997
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Walter Leib*
/s/ William J. Morgan Director January 22, 1997
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William J. Morgan *
/s/ George Sirusas Director January 22, 1997
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George Sirusas*
/s/ John F. Williamson Director January 22, 1997
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John F. Williamson *
/s/ William E. Willoughby Director January 22, 1997
- --------------------------------
William E. Willoughby*
</TABLE>
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INDEX TO EXHIBITS
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Exhibit
Number Description
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<S> <C>
5. Opinion re: Legality -- opinion of the Company's
Senior Vice President and General Counsel -- filed
herewith.
23. Consents of Experts and Counsel
23.1 Consent of the Company's Senior Vice President and
General Counsel is contained in the opinion filed
as Exhibit 5 to this Registration Statement
23.2 Consent of Price Waterhouse LLP filed
herewith.
23.3 Consent of Coopers & Lybrand LLP filed herewith.
24. Power of Attorney (see signature pages of this
Registration Statement - Page 4)
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EXHIBIT 5
CONSENT OF COUNSEL
I serve as general counsel and am familiar with the Articles of
Incorporation, Bylaws and corporate proceedings generally of ICO, Inc. (the
"Company"). I have reviewed the corporate records as to the establishment of
the Company's 1996 Stock Option Plan which calls for the issuance of up to
800,000 shares of Common Stock to employees upon their exercise of options that
may be granted to them and the restated 1993 Non-employee Director Stock Option
Plan which calls for the issuance of up to 160,000 shares of Common Stock to
non-employee directors upon their exercise of options that may be granted to
them (the 160,000 shares includes 80,000 shares which have previously been
registered by the Company). Based upon such examination and considerations, I
am of the opinion:
1. that the Company is a duly organized and validly existing
corporation under the laws of the State of Texas; and
2. that the Company has taken all necessary and required corporate
actions in connection with the proposed issuance of 800,000 shares, under the
1996 Stock Option Plan, and 80,000 additional shares, under the restated 1993
Non-employee Director Stock Option Plan, of Common Stock and that Common Stock,
when issued and delivered, will be validly issued, fully paid and non-
assessable shares of Common Stock of the Company.
I hereby consent to be named in the Registration Statement and the
Prospectus part thereof as the attorney who has passed upon legal matters in
connection with the issuance of the aforesaid Common Stock and to the filing of
this opinion as an exhibit to the Registration Statement.
/s/ Robin E. Pacholder
- --------------------------
Senior Vice President and
General Counsel
January 21, 1997
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EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 20, 1996 appearing on page
F-2 of the ICO, Inc. Annual Report on Form 10-K for the year ended September
30, 1996.
Price Waterhouse LLP
Houston, Texas
January 20, 1997
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EXHIBIT 23.3
CONSENT OF COOPERS & LYBRAND LLP
We consent to the incorporation by reference in the registration statement of
ICO, Inc. on Form S-8 of our report dated, June 25, 1996, on our audits of the
consolidated financial statements of Wedco Technology, Inc. as of March 31,
1996 and 1995, and for the years ended March 31, 1996, 1995, and 1994.
Coopers & Lybrand L.L.P.
Princeton, New Jersey
January 20, 1997
