SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nichols Research Corporation
--------------------------------------------------------------
(Exact name of issuer as specified in its charter)
Delaware 63-0713665
- -------------------------------------------------------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
4090 Memorial Parkway, South, Huntsville, Alabama 35815-1502
- -------------------------------------------------------------------------------
(Address of principal executive offices, including Zip Code)
Nichols Research Corporation 1997 Stock Option Plan
- -------------------------------------------------------------------------------
(Full Title of the Plan)
Chris H. Horgen
Nichols Research Corporation
4090 Memorial Parkway, South
Huntsville, Alabama 35815-1502
- -------------------------------------------------------------------------------
(Name and Address of Agent for Service)
(256)883-1140
- -------------------------------------------------------------------------------
(Telephone Number, including area code, of agent for service)
- -------------------------------------------------------------------------------
The Registrant requests that the Registration Statement become effective
immediately upon filing pursuant to Securities Act Rule 462.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share (1) Price(1) Registration Fee
- ----------------- ---------------- -------------------- ------------------- ------------------
Common 1,300,000 $25.00 $32,500,000 $9,035
Stock $.01 par shares
value
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1)This calculation, which is made solely for the purpose of determining
the amount of the registration fee, is made pursuant to Rule 457 and is based on
a price of $25.00 per share, the average of the high and low price of a share of
common stock on September 15, 1999, as reported on the Nasdaq National Market.
- 2 -
PART I
Information Required in Section 10(a) Prospectus
Item 1. Plan Information.
This Registration Statement relates to the registration of 1,300,000 shares
of $.01 par value common stock of Nichols Research Corporation (the "Common
Stock") to be sold pursuant to the exercise of stock options granted to
employees of Nichols Research Corporation (the "Company") under the Nichols
Research Corporation 1997 Stock Option Plan (the "Plan"). Documents containing
the information specified in Part I of Form S-8 promulgated by the Securities
and Exchange Commission (the "Commission") will be sent or given to employees as
specified by Commission Rule 428(b).
Item 2. Registrant Information and Employee Plan Annual Information.
See response to Item 1 above.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company are hereby incorporated by
reference as of their respective dates:
1) the Company's Annual Report on Form 10-K for the year ended August 31,
1998; and the Company's Quarterly Reports on Form 10-Q for the quarters ended
November 30, 1998, February 28, 1999, and May 31, 1999;
2) the description of the Company's Common Stock contained in the Company's
registration statement on Form 8-A filed with the Commission on January 14,
1987, as amended by Form 8 filed with the Commission on August 18, 1989;
3) the Company's Current Report on Form 8-K dated January 15, 1999, and
filed with the Commission on February 5, 1999; and
4) the Company's Current Report on Form 8-K dated September 19, 1999, and
filed with the Commission on September 20, 1999.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date hereof and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing such documents.
- 3 -
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock issuable upon the exercise of options
granted under the Plan has been passed upon for the Company by the law firm of
Lanier Ford Shaver & Payne, P.C., 200 West Court Square, Suite 5000, Huntsville,
Alabama 35801. John R. Wynn, a member-stockholder of Lanier Ford Shaver & Payne,
P.C., is a director of the Company. As of July 31, 1999, six attorneys of Lanier
Ford Shaver & Payne, P.C., including Mr. Wynn, beneficially owned 33,696 shares
of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits indemnification
by the Company of any director, officer, employee or agent of the Company or
person who is serving or was serving at the Company's request as a director,
officer, employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, actually and reasonably incurred by him in connection with the
defense of any threatened, pending or completed action (whether civil, criminal,
administrative or investigative), to which he is or may be a party by reason of
having been such director, officer, employee or agent, provided that he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was unlawful. The
Company also has the power under Section 145 to indemnify persons set forth
above from threatened, pending or completed actions or suits by or in the right
of the Company to procure a judgment in its favor by reason of the fact that
such person was a director, officer, employee or agent of the Company or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation or enterprise against expenses actually and
reasonably incurred by him in connection with the defense or settlement of the
action if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, except that no
indemnification can be made with regard to any claim, issue or matter as to
which the person has been adjudged to be liable for negligence or misconduct in
the performance of his duty to the Company unless and only to the extent that
the Delaware Court of Chancery or the court in which the action was brought
determines that the person was fairly and reasonably entitled to indemnity. Any
indemnification (unless ordered by a court) must be made by the Company only as
authorized in the specific case upon a determination that indemnification of the
person is proper in the circumstances because he has met the applicable
standards of conduct. The determination must be made by the Board of Directors
by a majority vote of a quorum consisting of directors who are not parties to
the action, or if a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs, by independent counsel in a written opinion,
or by the stockholders. The Company may pay the expenses of an action in advance
of final disposition if authorized by the Board of Directors in a specific case,
upon receipt of an undertaking by the person to be indemnified to repay any such
advancesunless it shall ultimately be determined that such person is entitled to
be indemnified by the Company as authorized by law.
- 4 -
Article Nine of the Company's By-laws provides for indemnification of the
Company's directors, officers, employees or agents to the extent permitted by
Section 145 of the Delaware General Corporation Law. Article Nine of the
Company's By-laws further provides that the Company may purchase and maintain
insurance on behalf of those persons described above as eligible for
indemnification for liability arising out of such person's duties or status with
the Company whether or not indemnification in respect of such liability would be
permissible.
The Company has in effect an officers and directors liability insurance
policy with National Union Fire Insurance Company. The policy provides indemnity
to the directors and officers of the Company for the loss arising from any claim
by reason of a wrongful act where there is no corporate indemnification. The
insurance provides for the Company to be reimbursed for any indemnification it
may be required by statute or the Company's By-laws to make to any of its
directors and officers in connection with a claim by reason of a wrongful act.
Pursuant to exclusions, the policy covers negligent acts, errors, omissions or
breach of duty by a director or officer. The principal exclusions from coverage
include the following: (i) claims involving various violations of Section 16(b)
of the Securities Exchange Act of 1934; (ii) dishonest acts; and (iii) libel,
slander, or non-monetary damages. The policy has no deductible amount per
director or officer for each loss. A $500,000 deductible self-insurance
retention applies to the Company. The limit of liability under the policy is
$5,000,000 in the aggregate annually in excess of deductibles and
participations.
The Plan provides that in addition to such other rights of indemnification
as they may have as directors or as members of the committee administering the
Plan, the members of the Stock Option Plan Committee shall be indemnified by the
Company against the reasonable expenses, including attorney's fees, actually and
necessarily incurred in connection with the defense of any action, suit, or
proceeding, or in connection with any appeal therein to which they or any of
them may be a party by reason of any action taken or failure to act under, or in
connection, with the Plan or options granted thereunder, and against all amounts
paid by them in settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any action, suit, or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit, or
proceeding, that such Committee member is liable for negligence or misconduct in
the performance of his duties, provided that within sixty (60) days after
institution of any such action, suit, or proceeding, a Committee member, in
writing offers the Company the opportunity at its own expense to handle and
defend the same.
Item 7. Exemption from Registration Claimed.
Not applicable.
- 5 -
Item 8. Exhibits.
Exhibit No. Description
5 Opinion and Consent of Lanier Ford
Shaver & Payne, P.C.
23.1 Consent of Lanier Ford Shaver &
Payne, P.C. (included in Exhibit 5)
23.2 Consent of Ernst & Young, LLP
99 Nichols Research Corporation
1997 Stock Option Plan (1)
(1) Incorporated by reference to exhibit filed with the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended February 28, 1998, under the
Securities Exchange Act of 1934, File No. 0-15295.
Item 9. Undertakings.
The Company 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.
(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) 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.
- 6 -
(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 paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act 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 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.
(4) 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 the initial bona fide offering thereof.
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.
- 7 -
SIGNATURES
The Registrant. 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 the City of Huntsville, State of Alabama, on the 20th day of
September, 1999.
NICHOLS RESEARCH CORPORATION
Chris H. Horgen
By:_________________________________
Chris H. Horgen
Chairman of the Board
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Chris H. Horgen
_________________________ Chief Executive Officer and September 20, 1999
Chris H. Horgen Chairman of the Board
Charles A. Leader
_________________________ President, Chief Operating Officer September 20, 1999
Charles A. Leader and Director
Roy J. Nichols
_________________________ Senior Vice President and Director September 20, 1999
Roy J. Nichols
Patsy L. Hattox
_________________________ Chief Administrative Officer, September 20, 1999
Patsy L. Hattox Corporate Vice President, Secretary
and Director
Roger P. Heinish
_________________________ Director September 20, 1999
Roger P. Heinish
- 8 -
John R. Wynn
_________________________ Director September 20, 1999
John R. Wynn
Michael J. Mruz
_________________________ Director September 20, 1999
Michael J. Mruz
_________________________ Director
William E. Odom
James R. Thompson, Jr.
_________________________ Director September 20, 1999
James R. Thompson, Jr.
_________________________ Director
Phil E. DePoy
Thomas L. Patterson
_________________________ Chairman of the Board of Nichols September 20, 1999
Thomas L. Patterson TXEN Corporation and Director
Daniel W. McGlaughlin
_________________________ Director September 20, 1999
Daniel W. McGlaughlin
_________________________ Director
David Friend
Allen E. Dillard
_________________________ Corporate Vice President, Chief September 20, 1999
Allen E. Dillard Financial Officer and Corporate
Treasurer (Principal Financial and
Accounting Officer)
</TABLE>
- 9 -
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
5 Opinion and Consent of Lanier Ford
Shaver & Payne, P.C.
23.1 Consent of Lanier Ford Shaver &
Payne, P.C. (included in Exhibit 5)
23.2 Consent of Ernst & Young, LLP
99 Nichols Research Corporation
1997 Stock Option Plan (1)
(1) Incorporated by reference to exhibit filed with the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended February 28, 1998, under the
Securities Exchange Act of 1934, File No. 0-15295.
- 10 -
OPINION OF LEGAL COUNSEL RE: LEGALITY
LANIER FORD SHAVER & PAYNE, P.C.
P.O. BOX 2087
HUNTSVILLE, ALABAMA 35804
September 21, 1999
Nichols Research Corporation
4090 Memorial Parkway, South
Huntsville, Alabama 35815-1502
Ladies and Gentlemen:
As counsel for Nichols Research Corporation (herein called the
"Corporation"), we are familiar with the records of the proceedings by which it
was organized, the records of the proceedings by which its Certificate of
Incorporation has from time to time been amended, the records of the proceedings
by which the shares of its common stock have from time to time been issued, the
proceedings by which the Nichols Research Corporation 1997 Stock Option Plan
(herein called the "Plan") which were authorized and adopted by the Board of
Directors of the Corporation, and the proceedings by which the Plan were
authorized and approved by the stockholders of the Corporation.
We have also reviewed such documents and records as we have deemed
necessary to enable us to express an informed opinion with respect to the
matters covered hereby. Based upon the foregoing, we are of the opinion that:
1. The Corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware; and
2. The 1,300,000 shares of common stock of the par value of one cent ($.01)
each of the Corporation that may be issued and sold from time to time upon the
exercise of options granted in accordance with the Plan will be duly authorized
for issuance and will, when issued, sold and paid for in accordance with the
Plan and for a price not less than one cent ($.01) per share, be validly issued,
fully paid and nonassessable, and no personal liability will attach to the
holders thereof under the laws of the State of Delaware in which the Corporation
is incorporated and in the State of Alabama in which its principal place of
business is located.
We hereby consent to the use of our name in the Registration Statement
(Form S-8), pertaining to the Plan as counsel who has passed upon the legality
of the shares of common stock that may be issued and sold under the Plan, and
to the use of this opinion as a part of such Registration Statement as required
by Section 7 of the Securities Act of 1933, as amended.
Sincerely,
LANIER FORD SHAVER & PAYNE P.C.
Elizabeth W. Abel
By:_______________________________
Elizabeth W. Abel
EWA/sb
<PAGE>
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8, No. 333-___________) pertaining to the Nichols Research Corporation
1997 Stock Option Plan of our report dated October 7, 1998, except for the
restatement related to acquired in-process technology referred to in Note 11, as
to which the date is January 7, 1999, with respect to the consolidated financial
statements of Nichols Research Corporation included in its Annual Report (Form
10-K) for the year ended August 31, 1998, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Birmingham, Alabama
September 20, 1999
