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As filed with the Securities and Exchange Commission on May 22, 1998
Registration No. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ICO, INC.
(Exact name of Registrant as specified in its Charter)
TEXAS 76-0566682
(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.
1998 STOCK OPTION PLAN
Mr. Gene Oshman, Esq.
Baker & Botts L.L.P.
One Shell Plaza, 910 Louisiana
Houston, Texas 77002-4995
(713)229-1234
(Name, address, including zip code and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
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
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 600,000 (3) $4.7813 $2,868,750 $846.29
No par value (2) Shares
=======================================================================================================================
</TABLE>
(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 May 21, 1998.
(2) Includes the preferred stock purchase rights associated with the
Common Stock.
(3) This Registration Statement is filed for up to 600,000 shares of
Common Stock issuable upon exercise of options granted pursuant to the
ICO, Inc. 1998 Stock Option Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Form S-8 and the statement of availability of registrant
information and any other information required by Item 2 of Form S-8 will be
sent or given to participants as specified by Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and
the requirements of Part I of Form S-8, such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. The registrant shall maintain a
file of such documents in accordance with the provisions of Rule 428. Upon
request, the registrant shall furnish to the Commission or its staff a copy or
copies of all of the documents included in such file.
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, 1997.
2. The Company's Quarterly Report on Form 10-Q for the Fiscal
Quarter ended December 31, 1997.
3. The Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission on April 15, 1998.
4. The Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission on April 16, 1998.
5. The Company's Quarterly Report on Form 10-Q for the Fiscal
Quarter ended March 31, 1998.
6. 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.
7. The description of the Company's preferred share purchase rights
contained in a Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on December 22, 1997.
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, subsequent to the date of the Registration Statement and 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.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
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Statement to the extent that a statement contained herein or in any
subsequently filed supplement to this Registration Statement or in any document
that also is incorporated by reference herein or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
EXPERTS
The audited consolidated financial statements incorporated in this
registration statement by reference to the Company's annual report on Form 10-K
for the fiscal year ended September 30, 1997 have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Mr. Michael Contorno has given an opinion regarding the validity of
the securities being registered hereby, a copy of which is filed as Exhibit 5
to this Registration Statement. Mr. Contorno has served as Associate General
Counsel of the Company since August 1997. Mr. Contorno holds an option to
purchase 10,000 shares of Common Stock.
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:
4.1 Amended and Restated Articles of Incorporation of Company
(Incorporated by reference to Exhibit 4 to Form S-3 of the
Company dated September 13, 1993).
4.2 By-Laws of the Company (Incorporated by reference to
Exhibit 3(ii) to Form 10-Q of the company for the quarter
ended June 30, 1996).
4.3 Shareholders' Rights Agreement dated November 20, 1997 by
and between the Company and Harris Trust & Savings Bank as
rights agent (Incorporated as Exhibit 1 to Form 8-A of the
Company dated December 22, 1997).
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4.4 ICO, Inc. 1998 Stock Option Plan (Incorporated by
reference to Exhibit "A" to the ICO, Inc. Proxy Statement
dated March 6, 1998).
5. Opinion re: Legality -- opinion of the Company's Senior Vice
President and General Counsel -- filed herewith.
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.
24. Power of Attorney (see signature page of this Registration
Statement - Page 4)
Item 9. Undertakings
9.1 The undersigned Registrant hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) of the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) 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;
provided, however, that the undertakings set forth in
paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Securities Exchange Act
of 1934 that are incorporated by reference 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.
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(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) 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 bona fide 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 May 22, 1998.
ICO, INC.
By: /s/ Sylvia A. Pacholder
-----------------------------------
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 Sylvia A. Pacholder as Attorney-In-Fact
to sign all amendments including any post-effective amendments to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said Attorney-In-Fact full power and authority, to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, to all intents and purposes and as fully as might or
could do in person, hereby ratifying and confirming all that said
Attorney-In-Fact or her substitutes may lawfully do or cause to be done by
virtue hereof.
<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ Sylvia A. Pacholder President & May 22, 1998
- ------------------------------------- Chief Executive Officer
Sylvia A. Pacholder (Principal Executive Officer
and Director)
/s/ Asher O. Pacholder Chairman of the Board May 22, 1998
- ------------------------------------ & Chief Financial Officer
Asher O. Pacholder * (Principal Financial Officer)
/s/ Robin E. Pacholder Senior Vice President May 22, 1998
- ------------------------------------ and General Counsel and Director
Robin E. Pacholder *
/s/ Jon C. Biro Senior Vice President & Treasurer May 22, 1998
- ---------------------------------------- (Principal Accounting Officer)
Jon C. Biro*
/s/ William E. Cornelius Director May 22, 1998
- -----------------------------------
William E. Cornelius *
/s/ James E. Gibson Director May 22, 1998
- -------------------------------------
James E. Gibson*
/s/ Walter Leib Director May 22, 1998
- ----------------------------------------
Walter Leib*
/s/ William J. Morgan Director May 22, 1998
- -----------------------------------
William J. Morgan *
/s/ George Sirusas Director May 22, 1998
- --------------------------------------
George Sirusas*
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ John F. Williamson Director May 22, 1998
- ----------------------------------
John F. Williamson *
/s/ William E. Willoughby Director May 22, 1998
- -------------------------------
William E. Willoughby*
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
5. Opinion re: Legality -- opinion of the Company's Senior Vice President and General Counsel
-- filed herewith.
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.
24. Power of Attorney (see signature pages of this Registration Statement - Page 4)
</TABLE>
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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 1998 Stock Option Plan which calls for the issuance of up to
600,000 shares of Common Stock to employees upon their exercise of options that
may be granted to them. 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 600,000 shares, under the
1998 Stock Option Plan, of Common Stock and that such Common Stock, when issued
and delivered, will be validly issued, fully paid and non-assessable shares of
Common Stock of the Company, upon payment therefore in accordance with the
terms and provisions of the 1998 Stock Option Plan.
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/ Michael Contorno
- ----------------------------
Associate General Counsel
May 22, 1998
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EXHIBIT 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 December 19, 1997 appearing on page
F-2 of the ICO, Inc. Annual Report on Form 10-K for the fiscal year ended
September 30, 1997. We also consent to the reference to us under the heading
of "Experts" in such registration statement.
PRICE WATERHOUSE LLP
Houston, Texas
May 21, 1998
