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As filed with the Securities and Exchange Commission on December 22, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
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 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.
AMENDED AND RESTATED 1993 NON-EMPLOYEE
DIRECTORS 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
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<CAPTION>
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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, 150,000(3) $1.50 $225,000 $60.00
No par value(2) 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 December 20, 1999.
(2) Includes the preferred stock purchase rights associated with the Common
Stock.
(3) This Registration Statement is filed for up to 150,000 shares of Common
Stock issuable upon exercise of options granted pursuant to the ICO,
Inc. Amended and Restated 1993 Non-employee Directors Stock Option Plan.
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This Registration Statement is being filed by ICO, Inc. (the "Company")
pursuant to General Instruction E of Form S-8 under the Securities Act of 1933,
as amended. The contents of the Registration Statement on Form S-8 (Registration
No. 333-20205) (the "1997 Registration Statement") as filed by the Company with
the Securities and Exchange Commission (the "Commission") on January 22, 1997
are incorporated herein by reference as indicated below with respect to the
securities registered thereunder pursuant to the 1993 Non-Employee Directors
Stock Option Plan (the "Plan").
Since the filing of the 1997 Registration Statement, the Company has
undergone a corporate restructuring as described in its Current Report on Form
8-K as filed with the Commission on April 1, 1998, which is hereby incorporated
herein by reference. The reorganization was effected by a holding company merger
pursuant to which a new parent holding company was created and which became the
owner of the former publicly-held company. The holding company merger did not
require action by the company's shareholders whose rights, privileges and
interests remained the same with respect to the new parent corporation. In the
holding company merger, each share of outstanding common stock of the former
publicly-held company was exchanged for a share of common stock of the new
parent company. The name of the new parent company remained as ICO, Inc. The
Plan has been adopted by the Company as a successor to the former public
company.
In addition, at the Company's annual shareholders meeting held on March
8, 1999, the Company's shareholders approved Plan amendments to (i) increase the
number of shares subject to options which can be granted under the Plan from
160,000 to 310,000 shares; (ii) extend the term of the Plan until 2009; (iii)
make certain appropriate or conforming changes in dates and clarify certain
actions previously taken in connection with the Plan; and (iv) make certain
changes to conform to amendments in Rule 16b-3 under the Securities Exchange Act
of 1934, as amended.
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 a file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by Reference to Item 3 of the 1997 Registration Statement.
In addition to the documents incorporated by reference in this Item 3,
the following document filed by the Company with the Commission is incorporated
herein by reference and made a part hereof:
3. The description of the Company's preferred share purchase rights
contained in a Registration Statement on Form 8-A filed with the
Commission on December 22, 1997, as thereafter amended from time
to time for the purpose of updating, changing or modifying such
description.
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, 1999 have been so incorporated in
reliance on the report of PricewaterhouseCoopers 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. David Gerst 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. Gerst has served as Senior Vice President and
General Counsel of the Company since September 1998. Mr. Gerst owns 2,414 shares
and holds an option to purchase 15,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers
Incorporated by reference to Item 6 of the 1997 Registration Statement.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4. Instruments defining the rights of security holders, including
indentures:
4.1 Articles of Incorporation of the Company dated March 20, 1998
(incorporated by reference to Exhibit 3.1 to Form 10-Q of the
Company dated August 13, 1998).
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4.2 Amended and Restated by-Laws of the Company dated May 12, 1999
(incorporated by reference to Exhibit 3.4 to Form 10-Q of the
Company for the quarter ended June 30, 1999).
4.3 Shareholders' Rights Agreement dated November 20, 1997 by and
between the Company and Harris Trust & Savings Bank as rights
agent (incorporated by reference to Exhibit 1 to Form 8-A of
the Company dated December 22, 1997).
4.4 Certificate of Designation of Junior Participating Preferred
Stock of ICO Holdings, Inc. dated March 30, 1998 (incorporated
by reference to Exhibit 3.2 to Form 10-K of the Company for
the fiscal year ended September 30, 1998).
4.5 ICO, Inc. Amended and Restated 1993 Non-Employee Directors
Stock Option Plan (incorporated by reference to Exhibit A to
the ICO, Inc. Proxy Statement dated January 26, 1999).
5. Opinion re: Legality -- opinion of the Company's Senior Vice
President and General Counsel -- filed herewith.
23. Consents of Independent Accountants 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 PricewaterhouseCoopers LLP is filed herewith.
24. Power of Attorney (see signature page of this Registration Statement
- Page 5)
Item 9. Undertakings
(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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and 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.
(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) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant=s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (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 December 17, 1999.
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 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.
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Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ Sylvia A. Pacholder President, December 17, 1999
- ------------------------------- Chief Executive Officer and Director
Sylvia A. Pacholder (Principal Executive Officer)
/s/ Asher O. Pacholder Chairman of the Board December 17, 1999
- ------------------------------- and Chief Financial Officer
Asher O. Pacholder * (Principal Financial Officer)
/s/ Robin E. Pacholder President, Wedco-North America December 17, 1999
- ------------------------------- and Director
Robin E. Pacholder *
/s/ Jon C. Biro Senior Vice President & Treasurer December 17, 1999
- ------------------------------- (Principal Accounting Officer)
Jon C. Biro*
/s/ William E. Cornelius Director December 17, 1999
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William E. Cornelius *
/s/ James E. Gibson Director December 17, 1999
- -------------------------------
James E. Gibson*
/s/ Walter Leib Director December 17, 1999
- -------------------------------
Walter Leib*
/s/ William J. Morgan Director December 17, 1999
- -------------------------------
William J. Morgan *
/s/ George Sirusas Director December 17, 1999
- -------------------------------
George Sirusas*
/s/ John F. Williamson Director December 17, 1999
- -------------------------------
John F. Williamson *
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<S> <C> <C>
/s/ William E. Willoughby Director December 17, 1999
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William E. Willoughby*
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Articles of Incorporation of the Company dated March 20, 1998
(incorporated by reference to Exhibit 3.1 to Form 10-Q of the
Company dated August 13, 1998).
4.2 Amended and Restated by-Laws of the Company dated May 12, 1999
(incorporated by reference to Exhibit 3.4 to Form 10-Q of the
Company for the quarter ended June 30, 1999).
4.3 Shareholders' Rights Agreement dated November 20, 1997 by and
between the Company and Harris Trust & Savings Bank as rights agent
(incorporated by reference to Exhibit 1 to Form 8-A of the Company
dated December 22, 1997).
4.4 Certificate of Designation of Junior Participating Preferred Stock
of ICO Holdings, Inc. dated March 30, 1998 (incorporated by
reference to Exhibit 3.2 to Form 10-K of the Company for the fiscal
year ended September 30, 1998).
4.5 ICO, Inc. Amended and Restated 1993 Non-Employee Directors Stock
Option Plan (incorporated by reference to Exhibit A to the ICO,
Inc. Proxy Statement dated January 26, 1999).
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 PricewaterhouseCoopers LLP filed herewith.
24. Power of Attorney (see signature pages of this Registration
Statement Page 5)
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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 Amended and Restated 1993 Non-Employee Directors Stock Option Plan
which calls for the issuance of up to 310,000 shares of Common Stock to
non-employee Directors upon their exercise of options that may be granted to
them (The 310,000 shares includes 160,000 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 150,000 additional shares,
under the Amended and Restated 1993 Non-employee Directors 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 Amended and Restated 1993 Non-employee Directors 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/ David Gerst
- ---------------------------
Senior Vice President
and General Counsel
December 17, 1999
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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 10, 1999 appearing on page
F-2 of the ICO, Inc. Annual Report on Form 10-K for the fiscal year ended
September 30, 1999. We also consent to the reference to us under the heading of
"Experts" in such registration statement.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
December 20, 1999
