<PAGE> 1
As filed with the Securities and Exchange Commission on September 2, 1997
Registration No. 33-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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TYLER CORPORATION
(Exact name of registrant as specified in charter)
Delaware 75-2303920
(State or other jurisdiction (I.R.S. Employer
of Incorporation) Identification No.)
3200 San Jacinto Tower
2121 San Jacinto Street
Dallas, Texas 75201
(Address of Principal Executive Offices) (Zip Code)
THE TYLER CORPORATION STOCK OPTION PLAN
(Full title of the Plan)
----------
David P. Tusa Copy to: David G. McLane
Senior Vice President and Gardere & Wynne, L.L.P.
Chief Financial Officer 1601 Elm Street
Tyler Corporation Suite 3000
3200 San Jacinto Tower Dallas, Texas 75201
2121 San Jacinto Street (214) 999-4607
Dallas, Texas 75201
(214) 754-7800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed
Proposed maximum
Amount maximum aggregate Amount of
Title of securities to be offering price offering registration
to be registered registered per share price fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value 700,000(1) $ -- (2) $1,711,690(2) $519(2)
Common Stock Purchase Rights(3)
======================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, shares
issuable upon any stock split, stock dividend or similar transaction
with respect to these shares are also being registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee,
which has been computed in accordance with Rule 457(h), based on the
prices at which outstanding options may be exercised (as to 170,648
shares), plus the average of the high and low prices for the Common
Stock on the New York Stock Exchange Composite Tape for August 28,
1997 (as to 529,352 shares for which the exercise price is not known).
(3) This registration statement also covers Common Stock Purchase Rights
(the "Rights") that are issued on a one-for-one basis with each share
of Common Stock. The Rights are not represented by a separate
certificate and may not be transferred other than upon transfer of the
related Common Stock. Since the value of the shares of Common Stock
registered hereunder is based in part on the value of the related
Rights, the inclusion of the Rights does not increase the proposed
maximum aggregate offering price per share and no additional
registration fee is required.
Shares of Common Stock of the registrant for issuance upon exercise of
employee stock options have been heretofore registered under a Registration
Statement on Form S-8 No. 33-34544 of the registrant. These shares of Common
Stock and the options are described in the Section 10(a) prospectus for this
registration statement in accordance with Rule 429 of the General Rules and
Regulations under the Securities Act of 1933, as amended.
===============================================================================
<PAGE> 2
On February 7, 1997, the Board of Directors of the Registrant adopted,
subject to stockholder approval, an amendment to and restatement of The Tyler
Corporation Stock Option Plan (the "Plan") to increase from 1,100,000 to
1,800,000 the aggregate number of shares of the Registrant's Common Stock, par
value $0.01 per share, reserved for issuance under the Plan and to extend the
expiration date of the Plan from March 12, 2000 to February 6, 2007. The
amendment and restatement of the Plan was approved by the stockholders of the
Registrant at the Annual Meeting of Stockholders held on April 28, 1997. The
contents of the Registrant's Registration Statement on Form S-8 (File No.
33-34544) filed with the Securities and Exchange Commission on April 25, 1990
relating to the Plan (the "Prior S-8"), including the documents incorporated by
reference therein, are incorporated by reference into this Registration
Statement.
PART II
ITEM 8. EXHIBITS
In addition to the exhibits filed or incorporated by reference into
the Prior S-8, the following documents are filed as Exhibits to this
Registration Statement:
4.1 The Tyler Corporation Stock Option Plan [Amended and Restated
as of February 7, 1997]
5.1 Opinion of Gardere & Wynne, L.L.P.
23.1 Consent of Ernst & Young LLP, independent auditors to
incorporation of reports by reference.
23.2 Consent of legal counsel (included in the opinion of Gardere &
Wynne, L.L.P., filed herewith as Exhibit 5.1)
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement)
ITEM 9. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the 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 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.
1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Dallas, and the State of
Texas, on September 2, 1997.
TYLER CORPORATION
(Registrant)
By: /s/ BRUCE W. WILKINSON
-----------------------------------
Bruce W. Wilkinson, Chief
Executive Officer,
President and Director
POWER OF ATTORNEY
Each of the undersigned hereby appoints Bruce W. Wilkinson and David
P. Tusa, and each of them (with full power to act alone), as attorneys and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Securities
and Exchange Commission under the Securities Act of 1933 any and all amendments
and exhibits to this Registration Statement and any and all applications,
instruments and other documents to be filed with the Securities and Exchange
Commission pertaining to the registration of the securities covered hereby,
with full power and authority to do and perform any and all acts and things
whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on September 2, 1997.
Signature Title
--------- -----
/s/ C. A. RUNDELL, JR. Chairman of the Board of Directors
- ------------------------------ (a principal executive officer)
C. A. Rundell, Jr.
/s/ BRUCE W. WILKINSON Chief Executive Officer, President
- ------------------------------ and Director
Bruce W. Wilkinson (a principal executive officer)
/s/ DAVID P. TUSA Senior Vice President and Chief
- ------------------------------ Financial Officer
David P. Tusa (principal financial and
accounting officer)
/s/ ERNEST H. LORCH Director
- ------------------------------
Ernest H. Lorch
/s/ FREDERICK R. MEYER Director
- ------------------------------
Frederick R. Meyer
/s/ JAMES E. RUSSELL Director
- ------------------------------
James E. Russell
2
<PAGE> 4
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 The Tyler Corporation Stock Option Plan [Amended and Restated
as of February 7, 1997]
5.1 Opinion of Gardere & Wynne, L.L.P.
23.1 Consent of Ernst & Young LLP, independent auditors to
incorporation of reports by reference.
23.2 Consent of legal counsel (included in the opinion of Gardere &
Wynne, L.L.P., filed herewith as Exhibit 5.1)
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement)
</TABLE>
<PAGE> 1
EXHIBIT 4.1
THE
TYLER CORPORATION
STOCK OPTION PLAN
[AMENDED AND RESTATED AS OF FEBRUARY 7, 1997]
On March 13, 1990, the Board of Directors (the "Board") of Tyler
Corporation (then named Tyler Three, Inc.) (the "Company") adopted The Tyler
Corporation Stock Option Plan (the "Plan").
On February 7, 1997, the Board amended and restated the Plan in its
entirety to, among other things, increase the number of shares of Common Stock
that may be made the subject of options under the Plan and extend the term of
the Plan.
The Plan, as so amended and restated on February 7, 1997, is as follows:
1. PURPOSE. The purpose of the Plan is to provide certain key employees
with a proprietary interest in the Company through the granting of options
which will:
(a) increase the interest in the Company's welfare of those key
employees who share the primary responsibility for the management,
growth and protection of the business of the Company;
(b) furnish an incentive to such key employees to continue their
services for the Company; and
(c) provide a means through which the Company may attract able
persons to enter its employ.
2. ADMINISTRATION. The Executive Committee of the Board shall administer
the Plan, except that the Compensation Audit Committee of the Board shall
administer the Plan to the extent that it covers employees who are officers or
directors of the Company.
3. PARTICIPANTS. The Committee shall from time to time select the
particular employees from among those key employees of the Company or of any
Subsidiary to whom options are to be granted. Upon each such grant, the
selected key employee will become a participant in the Plan. For purposes of
this Plan, key employees shall mean those employees of the Company and its
Subsidiaries whose performance and responsibilities are determined by the
Committee to be influential to the success of the Company.
4. RESTRICTION ON ELIGIBILITY. No Incentive Option shall be granted to a
director of the Company who is not an employee of the Company or of a
Subsidiary. Further, no Incentive Option shall be granted to an employee who
owns more than 10% of the voting power of all classes of stock of the Company
or its Parent or Subsidiaries. The 10% shareholder limitation shall not apply
if the option price is at least 110% of the fair market value of the stock at
the time
<PAGE> 2
the Incentive Option is granted and the option is not exercisable more than
five years from the date it is granted.
5. SHARES SUBJECT TO PLAN. The Committee may not grant options under the
Plan for more than 1,800,000 shares of Common Stock of the Company, but this
number may be adjusted to reflect, if deemed appropriate by the Committee, any
stock dividend, stock split, share combination, recapitalization or the like,
of or by the Company. The Committee may grant options for a larger number of
shares, but the terms of the options must be such that no more than the number
of shares specified in the previous sentence may be issued on exercise of
options granted under the Plan. Shares to be optioned and sold may be made
available from either authorized but unissued Common Stock or Common Stock held
by the Company in its treasury. Shares that by reason of the expiration of an
option or otherwise are no longer subject to purchase pursuant to an option
granted under the Plan may be reoffered under the Plan.
6. LIMITATION ON AMOUNT. The aggregate fair market value (determined at
the time of grant) of the stock which any employee is first eligible to
purchase in any calendar year by exercise of Incentive Options granted under
this Plan and all incentive stock option plans of the Company or its Parent or
Subsidiaries shall not exceed $100,000. For this purpose, the fair market value
(determined at the respective date of grant of each option) of the stock
purchasable by exercise of an Incentive Option (or an installment thereof)
shall be counted against the $100,000 annual limitation for an optionholder
only for the calendar year such stock is first purchasable under the terms of
the option.
7. ALLOTMENT OF SHARES. The Committee shall determine the number of
shares of Common Stock to be offered from time to time by grant of options to
key employees of the Company or its Subsidiaries. The grant of an option to a
key employee shall not be deemed either to entitle such employee to, or
disqualify such employee from, participation in any other grant of options
under the Plan.
8. GRANTS OF OPTIONS. The Committee is authorized to grant Incentive
Options and Nonqualified Options under the Plan. The grant of options shall be
evidenced by stock option agreements containing such terms and provisions as
are approved by the Committee, but not inconsistent with the Plan, including
provisions that may be necessary to assure that any option that is intended to
be an Incentive Option will comply with Section 422 of the Internal Revenue
Code of 1986, as amended. The Company shall execute stock option agreements
upon instructions from the Committee. A stock option agreement may provide, if
the Committee so determines, that upon the exercise of the option the Committee
may elect to pay, in lieu of receipt from the optionholder of the exercise
price and issuance of certificates for the shares of stock exercised, an amount
equal to the excess of the fair market value per share on the date of exercise
over the per share exercise price of the option, multiplied by the number of
shares covered by the option or the portion thereof being exercised ("Stock
Appreciation"). If such election is made, the Stock Appreciation shall be paid
to the optionholder either in cash or in Common Stock, or in cash and Common
Stock (based on the fair market value of such stock on the date of election by
the optionholder), as the Committee shall determine. The option to purchase
shares shall terminate with respect to the number of shares for which the Stock
Appreciation is paid. The Committee may grant options to key employees after
the amendment and restatement of the Plan on February 7, 1997 and prior to
stockholder approval of the
-2-
<PAGE> 3
Plan. If for any reason the stockholders of the Company do not approve the
amended and restated Plan at their 1997 annual meeting (or any adjournment
thereof), all options granted to employees under the restated Plan at a time
when the aggregate number of shares subject to then outstanding options
exceeded the aggregate number of shares then available for issuance pursuant to
the Plan, will be terminated and of no effect and all other options granted to
employees during such period shall remain outstanding and shall be governed by
the Plan as it existed prior to its amendment and restatement on February 7,
1997. No option that is so subject to termination may be exercised in whole or
in part prior to such stockholder approval.
9. OPTION PRICE. The option price for shares subject to options granted
under the Plan shall be determined by the Committee and shall not be less than
100 percent of the fair market value per share of the Common Stock on the date
the option is granted. The fair market value per share of the stock on the date
of grant of the option shall be the reported closing price of the Common Stock
on the New York Stock Exchange on the date of grant of the option, or if no
sale of the Common Stock shall have been reported on such date of grant, on the
next preceding day or the last day prior to the date of grant when a sale was
reported.
10. OPTION PERIOD; VESTING. The Option Period will begin on the date the
option is granted, which will be the date the Committee authorizes the option
unless the Committee specifies a later date. No option may terminate later than
ten years from the date the option is granted. The Committee may provide for
the options to vest and become exercisable in installments and upon such other
terms, conditions and restrictions as it may determine. The Committee may
provide for earlier termination of the option and the Option Period in the case
of termination of employment, dishonesty, or for any other reason. The
Committee may accelerate the exercise of or terminate any or all outstanding
options, or both, upon such terms and dates as the Committee determines in its
sole discretion in the event the Company shall sell all or substantially all of
its assets or if all or substantially all of the Company stock is sold, or
exchanged for or converted into securities of another corporation, or in the
event of some other material corporate restructuring.
11. RIGHTS IN EVENT OF DEATH. If a participant dies prior to termination
of his right to exercise an option in accordance with the provisions of the
Plan or his stock option agreement, without having totally exercised the
option, the option may be exercised, to the extent of the shares with respect
to which the option could have been exercised on the date of the participant's
death, by the participant's estate or by the person who acquired the right to
exercise the option by bequest or inheritance or by reason of the death of the
participant, provided the option is exercised prior to the date of expiration
of the Option Period or one year from the date of the participant's death,
whichever first occurs.
12. PAYMENT. Full payment for shares of Common Stock purchased upon
exercising an option shall be made in cash or by check at the time of exercise,
or on such other terms as are set forth in the applicable option agreement. No
shares of Common Stock shall be issued until full payment of the purchase price
therefor has been made, and a participant shall have none of the rights of a
stockholder until shares are issued to him.
13. EXERCISE OF OPTION. Unless otherwise provided in this Plan, all
options granted under the Plan may be exercised during the Option Period, at
such times, in such amounts, in
-3-
<PAGE> 4
accordance with such terms and subject to such restrictions as are set forth in
the applicable stock option agreements. In no event shall an option be
exercised or shares be issued pursuant to an option if any requisite action,
approval or consent of any governmental authority of any kind having
jurisdiction over the exercise of options shall not have been taken or secured.
The Committee may offer an optionholder, upon such conditions and restrictions
as it deems advisable and in lieu of receipt from him of the exercise price and
issuance of certificates for the shares of stock exercised, the right to elect
payment in cash, Common Stock, or a combination of cash and Common Stock as the
Committee shall determine in an amount equal to the Stock Appreciation.
14. CAPITAL ADJUSTMENTS AND REORGANIZATIONS. The number of shares of
Common Stock covered by each outstanding option granted under the Plan and the
option price thereof, may be adjusted to reflect, as deemed appropriate by the
Committee, any stock dividend, stock split, share combination, exchange of
shares, recapitalization, merger, consolidation, separation, reorganization,
liquidation or the like, of or by the Company.
15. NON-ASSIGNABILITY. Options may not be transferred other than by will
or by the laws of descent and distribution. During a participant's lifetime,
options granted to a participant may be exercised only by the participant or by
his guardian or legal representative.
16. INTERPRETATION. The Committee shall interpret the Plan and shall
prescribe such rules and regulations in connection with the operation of the
Plan as it determines to be advisable for the administration of the Plan. The
Committee may rescind and amend its rules and regulations.
17. AMENDMENT OR DISCONTINUANCE. The Plan may be amended or discontinued
by the Board without the approval of the stockholders of the Company, except
that any amendment that would materially increase the number of securities that
may be issued under the Plan or change the class of employees who are eligible
to receive options under the Plan must be approved by the stockholders of the
Company.
18. EFFECT OF PLAN. Neither the adoption of the Plan nor any action of
the Board or the Committee shall be deemed to give any officer or employee any
right to be granted an option to purchase Common Stock of the Company or any
other rights except as may be evidenced by the stock option agreement, or any
amendment thereto, duly authorized by the Board or the Committee and executed
on behalf of the Company and then only to the extent and on the terms and
conditions expressly set forth therein and in the Plan.
19. TERM. Unless sooner terminated by action of the Board, this Plan
will terminate on February 6, 2007. The Committee may not grant options under
the Plan after that date, but options granted before that date will continue to
be effective in accordance with their terms (subject to the condition of
obtaining stockholder approval with respect to certain options as set forth in
Section 8).
20. DEFINITIONS. For the purpose of this Plan, unless the context
requires otherwise, the following terms shall have the meanings indicated:
-4-
<PAGE> 5
(a) "Committee" shall mean the Executive Committee or the
Compensation Audit Committee of the Board, whichever is administering
the Plan with respect to a particular grantee.
(b) "Common Stock" shall mean the Company's Common Stock which
the Company is currently authorized to issue or may in the future be
authorized to issue (as long as the common stock varies from that
currently authorized, if at all, only in amount of par value).
(c) "Incentive Option" shall mean an option granted under the
Plan which meets the requirements of Section 422 of the Internal Revenue
Code of 1986, as amended.
(d) "Nonqualified Option" shall mean an option granted under the
Plan which is not intended to be an Incentive Option.
(e) "Option Period" shall mean the period beginning on the date
of grant of an option and terminating on the last day an option may be
exercised, as provided in the Plan or, if applicable, the related stock
option agreement.
(f) "Parent" shall mean any corporation in an unbroken chain of
corporations ending with the Company if, at the time of the granting of
the option, each of the corporations other than the Company owns stock
possessing 50 percent or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(g) "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of the granting
of the option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in the chain, and "Subsidiaries" means more than one of any
such corporations.
-5-
<PAGE> 1
EXHIBIT 5.1
GARDERE & WYNNE, L.L.P.
Attorneys and Counselors
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201-4761
214-999-3000
Telecopier 214-999-4667
214-999-4607
September 2, 1997
Tyler Corporation
3200 San Jacinto Tower
2121 San Jacinto Street
Dallas, Texas 75201
Gentlemen:
We have acted as counsel to Tyler Corporation, a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), on Form S-8 (the "Registration
Statement") of an additional 700,000 shares of common stock, $0.01 par value
("Common Stock"), of the Company which may be issued from time to time upon
exercise of options granted by the Company under The Tyler Corporation Stock
Option Plan, as amended and restated as of February 7, 1997 (the "Plan").
We have assisted the Company in the preparation of, and are familiar with, the
Registration Statement of the Company to be filed with the Securities and
Exchange Commission on September 2, 1997 for the registration under the
Securities Act of the additional 700,000 shares of Common Stock covered by the
Plan.
With respect to the foregoing, we have examined and have relied upon originals
or copies, certified or otherwise identified to our satisfaction, of such
corporate records, documents, orders, certificates and other instruments as in
our judgment are necessary or appropriate to enable us to render the opinion
expressed below.
Based upon the foregoing, we are of the opinion that the additional 700,000
shares of Common Stock of the Company which from time to time may be issued
upon the exercise of options granted under the Plan in accordance with
appropriate proceedings of the Executive Committee or the Compensation Audit
Committee of the Board of Directors of the Company, when so issued and sold at
option prices in excess of the par value of the Common Stock in
<PAGE> 2
Tyler Corporation
September 2, 1997
Page 2
accordance with the respective provisions of the Plan and related agreements
will be duly and validly authorized and issued by the Company and fully paid and
nonassessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act and the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
GARDERE & WYNNE, L.L.P.
By: /s/ DAVID G. MCLANE
----------------------------------
David G. McLane, Partner
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated
February 14, 1997, with respect to the consolidated financial statements and
schedule of Tyler Corporation included in its Annual Report (Form 10-K) for
the year ended December 31, 1996, filed with the Securities and Exchange
Commission, in this Registration Statement on Form S-8 covering shares of
Common Stock, $0.01 par value, of Tyler Corporation pertaining to The Tyler
Corporation Stock Option Plan.
ERNST & YOUNG LLP
Dallas, Texas
August 29, 1997
