AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1994.
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TECH-SYM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 74-1509818
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
10500 WESTOFFICE DRIVE
HOUSTON, TEXAS 77042-5391
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
TECH-SYM CORPORATION
1990 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
J. RANKIN TIPPINS
GENERAL COUNSEL
10500 WESTOFFICE DRIVE
HOUSTON, TEXAS 77042
(713) 785-7790
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED<F1> SHARE<F2> PRICE<F2> FEE
- ------------------------- ------------- ---------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, Par Value $0.10
Per Share........................ 288,000 $24.19 $6,966,720 $2,403
<F1> The number of shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
<F2> Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(c), based on the average of the high and
low prices per share of the Tech-Sym Common Stock as reported by
the consolidated reporting system of The New York Stock Exchange on
November 16, 1994.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Tech-Sym Corporation (the "Company") has previously filed
Registration Statements on Form S-8 (Registration Nos. 33-38208 and
33-61846) relating to 300,000 shares and 270,000 shares, respectively, of
the Company's common stock, par value $0.10 per share (the "Common Stock"),
to be issued under the Company's 1990 Stock Option Plan (the "Plan). In
accordance with General Instruction E of Form S-8, the contents of such
earlier Registration Statements are hereby incorporated by reference and a
filing fee has been paid only with respect to the additional securities
being registered hereby. Any statement contained in such earlier
Registration Statements shall be deemed modified and superseded for
purposes of this Registration Statement to the extent such statement is
modified or superseded by a statement contained herein or in any other
subsequently filed incorporated document.
ITEM 8. EXHIBITS.
Exhibit
Number Description
------- -----------
4.1 Tech-Sym Corporation 1990 Stock Option Plan, as amended.
5.1 Opinion of Counsel regarding legality.
23.1 Consent of Counsel (included in Exhibit 5.1 to the
Registration Statement).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (set forth on the signature page contained
in Part II of this Registration Statement).
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 the City of Houston, State of Texas, on
November 18, 1994.
Tech-Sym Corporation
By: /s/ WENDELL W. GAMEL
Wendell W. Gamel
Chairman of the Board, President
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, THAT EACH OF THE UNDERSIGNED OFFICERS
AND DIRECTORS OF TECH-SYM CORPORATION (THE "COMPANY") HEREBY CONSTITUTES
AND APPOINTS WENDELL W. GAMEL AND J. RANKIN TIPPINS, OR ANY OF THEM (WITH
FULL POWER TO EACH OF THEM TO ACT ALONE), HIS TRUE AND LAWFUL
ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION, FOR HIM AND ON
HIS BEHALF AND IN HIS NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO
SIGN, EXECUTE AND FILE THIS REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND ANY OR ALL AMENDMENTS (INCLUDING, WITHOUT
LIMITATION, POST-EFFECTIVE AMENDMENTS), WITH ALL EXHIBITS AND ANY AND ALL
DOCUMENTS REQUIRED TO BE FILED WITH RESPECT THERETO, WITH THE SECURITIES
AND EXCHANGE COMMISSION OR ANY REGULATORY AUTHORITY, GRANTING UNTO SUCH
ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM, FULL POWER AND AUTHORITY TO
DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE
DONE IN AND ABOUT THE PREMISES IN ORDER TO EFFECTUATE THE SAME, AS FULLY TO
ALL INTENTS AND PURPOSES AS HE HIMSELF MIGHT OR COULD DO IF PERSONALLY
PRESENT, HEREBY RATIFYING AND CONFIRMING ALL THAT SUCH ATTORNEYS-IN-FACT
AND AGENTS, OR ANY OF THEM, OR THEIR SUBSTITUTE OR SUBSTITUTES, MAY
LAWFULLY DO OR CAUSE TO BE DONE.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities on November 18, 1994.
SIGNATURE TITLE
--------- -----
/s/ WENDELL W. GAMEL Chairman of the Board,
Wendell W. Gamel President and Chief Executive Officer
(Principal Executive Officer)
/s/ RAY F. THOMPSON Vice President, Treasurer
Ray F. Thompson and Chief Financial Officer
(Principal Financial Officer
and Principal Accounting Officer)
/s/ W. L. CREECH Director
W. L. Creech
/s/ A. A. GALLOTTA, JR. Director
A. A. Gallotta, Jr.
/s/ CHRISTOPHER C. KRAFT, JR. Director
Christopher C. Kraft, Jr.
/s/ ROBERT E. MOORE Director
Robert E. Moore
/s/ COY J. SCRIBNER Director
Coy J. Scribner
/s/ ROLLIN J. SLOAN Director
Rollin J. Sloan
/s/ JOAL A. TERESKO Director
Joal A. Teresko
/s/ CHARLES K. WATT Director
Charles K. Watt
EXHIBIT 4.1
TECH-SYM CORPORATION
1990 STOCK OPTION PLAN
1. PURPOSE
The purpose of the Tech-Sym Corporation 1990 Stock Option Plan (the
"Plan") is to advance the interests of Tech-Sym Corporation (the "Company")
and its Subsidiaries (as defined below) by providing incentive awards and
stock ownership opportunities to those key employees (including officers
and directors who are employees) who contribute significantly to the
performance of the Company and its Subsidiaries ("Key Employees") and stock
ownership opportunities to the members of the Board of Directors of the
Company (the "Board") who are not employees of the Company or a Subsidiary
("Nonemployee Directors"). In addition, the Plan is intended to enhance
the ability of the Company and its Subsidiaries to attract and retain
individuals of superior managerial ability and to motivate such individuals
to exert their best efforts towards future progress and profitability of
the Company and its Subsidiaries.
For purposes of the Plan, a Subsidiary shall be any corporation in
which the Company has a direct or indirect ownership interest of 50% or
more of the total combined voting power of all classes of stock in such
corporation.
2. ADMINISTRATION AND INTERPRETATION
a. ADMINISTRATION. The Plan shall be administered by a committee
(the "Committee") consisting of not less than three members of the Board
appointed by and serving at the pleasure of the Board; provided that each
member shall be a "disinterested person" within the meaning of paragraph
(d)(3) of Rule 16b-3 which has been adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as such Rule or its
equivalent is in effect from time to time. The Board may from time to time
appoint members of the Committee in substitution for or in addition to
members previously appointed and may fill vacancies, however caused, in the
Committee. The Committee may prescribe, amend and rescind rules and
regulations for the administration of the Plan and shall have the full
power and authority to construe and interpret the Plan. A majority of the
members of the Committee shall constitute a quorum and the acts of a
majority of the members present at a meeting or the acts of a majority of
the members evidenced in writing shall be the acts of the Committee. The
Committee may correct any defect or any omission or reconcile any
inconsistency in the Plan or in any award or grant made hereunder in the
manner and to the extent it shall deem desirable.
The Committee shall have the full and exclusive right to grant all
Options and SARs (both as defined below), other than the automatic grant of
Options and SARs to Nonemployee Directors as provided in Section 5 below.
In granting Options or SARs, the Committee shall take into consideration
the contribution the employee has made or may make to the success of the
Company or its Subsidiaries and such other considerations as the Committee
shall determine. The Committee shall also have the authority to consult
with and receive recommendations from officers and other employees of the
Company and its Subsidiaries with regard to these matters. In no event
shall any employee, his legal representatives, heirs, legatees,
distributees, or successors have any right to participate in the Plan,
except to such extent, if any, as the Committee shall determine.
The Committee may from time to time in granting Options or SARs
under the Plan prescribe such other terms and conditions concerning such
Options or SARs as it deems appropriate, provided that such terms and
conditions are not more favorable to the Key Employee than those expressly
set forth in the Plan.
The day-to-day administration of the Plan may be carried out by
such officers and employees of the Company and its Subsidiaries as shall be
designated from time to time by the Committee.
b. INTERPRETATION. The interpretation and construction by the
Committee of any provisions of the Plan or of any award or grant under the
Plan and any determination by the Committee under any provision of the Plan
or any such award or grant shall be final and conclusive for all purposes.
c. LIMITATION ON LIABILITY. Neither the Committee nor any member
thereof shall be liable for any act, omission, interpretation, construction
or determination made in connection with the Plan in good faith, and the
members of the Committee shall be entitled to indemnification and
reimbursement by the Company in respect of any claim, loss, damage or
expense (including counsel fees) arising therefrom to the full extent
permitted by law and under any directors and officers liability insurance
coverage that may be in effect from time to time.
3. SHARES SUBJECT TO AWARDS UNDER THE PLAN
a. LIMITATION ON NUMBER OF SHARES. The shares subject to grants
of Options and SARs shall be shares of the Company's authorized but
unissued common stock, par value $.10 per share, and shares, if any, of
such common stock that are issued but not outstanding and held as treasury
stock by the Company ("Common Stock"). Subject to adjustment as
hereinafter provided, the aggregate number of shares of Common Stock as to
which Options and/or SARs may be granted under the Plan shall not exceed
858,000 shares.
Shares of Common Stock ceasing to be subject to an Option or SAR
because of the exercise of such Option or SAR shall no longer be subject to
any further grant under the Plan. If any outstanding Option or SAR, in
whole or in part, expires or terminates unexercised or is cancelled for any
reason prior to January 1, 2000, the shares of Common Stock allocable to
the unexercised, terminated, cancelled or forfeited portion of such Option
or SAR may again be made the subject of grants under the Plan.
b. ADJUSTMENTS OF AGGREGATE NUMBER OF SHARES. The aggregate
number of shares of Common Stock stated in Section 3(a) shall be subject to
appropriate adjustment, from time to time, in accordance with the
provisions of Section 6 hereof. In the event of a change in the Common
Stock of the Company that is limited to a change in the designation thereof
to "Capital Stock" or other similar designation, or to a change in the par
value thereof, or from par value to no par value, without increase or
decrease in the number of issued shares, the shares resulting from any such
change shall be deemed to be Common Stock within the meaning of the Plan.
4. ELIGIBILITY
The individuals eligible to receive Options and/or SARs under the
Plan shall be those Key Employees as the Committee from time to time shall
determine. In addition, each Nonemployee Director shall automatically
receive Options and SARs under the Plan as provided in Section 5 below.
5. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
a. GRANTS OF OPTIONS.
(1) IN GENERAL. Options granted under the Plan may be either
"Incentive Stock Options" or "Non-qualified Stock Options" (both as
defined below and collectively referred to as "Options"), or both.
Options granted under the Plan shall be of such type and for such
number of shares of Common Stock, subject to such terms and conditions
as the Committee shall designate.
The Committee may grant Incentive Stock Options and/or Non-
qualified Stock Options to Key Employees at any time and from time to
time before January 1, 2000.
(2) INCENTIVE STOCK OPTIONS. The term "Incentive Stock Option"
shall mean an Option, or portion thereof, that is intended to qualify
as an incentive stock option under Section 422A of the Internal
Revenue Code of 1986, as amended (the "Code").
(3) NON-QUALIFIED STOCK OPTIONS. The term "Non-qualified Stock
Option" shall mean any Option, or portion thereof, that is not an
Incentive Stock Option. Except as specifically provided herein, the
provisions of this Plan shall apply in the same manner to Incentive
Stock Options and to Non-qualified Stock Options.
b. GRANTS OF STOCK APPRECIATION RIGHTS.
(1) IN GENERAL. The term stock appreciation right or "SAR" shall
mean the right to receive from the Company an amount equal to the
Market Value Per Share (as defined in Section 5c.(4) below) on the
exercise date, over the Market Value Per Share on the date of grant,
multiplied by the total number of shares of Common Stock for which the
SAR is exercised. The amount payable by the Company upon the exercise
of a SAR may be paid in cash or in shares of Common Stock or in any
combination thereof as the Committee in its sole discretion shall
determine, but no fractional shares shall be issuable pursuant to any
SAR.
SARs may be granted by the Committee to any Key Employee at any
time and from time to time before January 1, 2000. A SAR may, but
need not, relate to a specific Option granted under this Plan. If a
SAR relates to a specific Option, it may be granted either
concurrently with the Option or at any time prior to the exercise,
termination, cancellation or expiration of such Option.
(2) LIMITATIONS ON SARS. The Committee may fix such waiting
periods, exercise dates or other limitations as it shall deem
appropriate with respect to SARs granted under the Plan; provided,
however, that each SAR granted hereunder shall be exercisable only
upon consent of the Committee; and provided further, that a SAR that
relates to a specific Option shall be exercisable only when and to the
extent that the Option to which it relates is exercisable.
c. TERMS OF OPTIONS AND SARS. Options and SARs granted pursuant
to this Plan shall be evidenced by stock option agreements and/or SAR
agreements respectively (collectively referred to herein as "agreements")
that shall comply with and be subject to the following terms and conditions
and may contain such other provisions, consistent with this Plan, as the
Committee shall deem advisable. SARs that relate to a specific Option,
however, may be evidenced by stock option agreements or agreements amending
and/or forming a part of the stock option agreements to which such SARs
relate. Reference herein to agreements shall include, to the extent
applicable, any amendments to such agreements.
(1) PAYMENT OF OPTION EXERCISE PRICE. Upon exercise of an Option,
the full option exercise price for the shares with respect to which
the Option is being exercised shall be payable to the Company (i) in
cash or by check payable and acceptable to the Company or (ii) subject
to the approval of the Committee, (a) by tendering to the Company
shares of Common Stock owned by the optionee having an aggregate
Market Value Per Share as of the date of exercise and tender that is
not greater than the full option exercise price for the shares with
respect to which the Option is being exercised and by paying any
remaining amount of the option exercise price as provided in (i) above
(provided that the Committee may, upon confirming that the optionee
owns the number of shares being tendered, authorize the issuance of a
new certificate for the number of shares being acquired pursuant to
the exercise of the Option less the number of shares being tendered
upon the exercise and return to the optionee (or not require surrender
of) the certificate for the shares being tendered upon the exercise)
or (b) by the optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to
promptly deliver to the Company cash or a check payable and acceptable
to the Company to pay the option exercise price; provided that in the
event the optionee chooses to pay the option exercise price as
provided in (ii)(b) above, the optionee and the broker shall comply
with such procedures and enter into such agreements of indemnity and
other agreements as the Committee shall prescribe as a condition of
such payment procedure. Payment instruments will be received subject
to collection.
(2) NUMBER OF SHARES. Each agreement shall state the total number
of shares of Common Stock that are subject to the Option and/or SAR.
(3) EXERCISE PRICE. The exercise price for each Option and SAR
shall be fixed by the Committee at the date of grant, but in no event
may such exercise price per share be less than the Market Value Per
Share (as defined below) on the date of the grant of the Option or
SAR.
(4) MARKET VALUE PER SHARE. The Market Value Per Share as of any
particular date shall be determined by any fair and reasonable means
determined by the Committee, which may include, if the Common Stock is
listed for trading on the New York Stock Exchange, the closing price
published in the WALL STREET JOURNAL reports of New York Stock
Exchange - Composite Transactions for the day of the grant, or if no
trade of the Common Stock shall have been reported for such date, the
closing price which is published in the WALL STREET JOURNAL reports of
the New York Stock Exchange - Composite Transactions for the next day
prior thereto on which a trade of the Common Stock was so reported.
(5) TERM. The term of each Option and/or SAR shall be determined
by the Committee at the date of grant; provided, however, that each
Option and/or SAR shall, notwithstanding anything in the Plan or an
agreement to the contrary, expire ten years from the date the Option
or SAR is granted or, if earlier, the date specified in the agreement
at the date of grant of such Option or SAR.
(6) DATE OF EXERCISE. In the discretion of the Committee, each
agreement may contain a provision not inconsistent with Section 8
hereof stating that the Option and/or SAR granted therein may not be
exercised in whole or in part for a period or periods of time
specified in such agreement, subject to Section 8, and except as so
specified therein, any Option or SAR may be exercised in whole at any
time or in part from time to time during its term. The Committee may,
however, at any time, in its sole discretion amend any outstanding
Option or SAR to accelerate the time that such Option or SAR shall be
exercisable or to provide that the time for exercising such Option or
SAR shall be accelerated upon the occurrence of a specified event.
(7) TERMINATION OF EMPLOYMENT. In the event that an individual's
employment with the Company and its Subsidiaries shall terminate, for
reasons other than (i) retirement with the consent of the Company or
the individual's employing Subsidiary, as the case may be,
("retirement"), (ii) permanent disability or (iii) death, the
individual's Options and/or SARs shall be exercisable by him, subject
to subsections (5) and (6) above, only within three months after such
termination, but only to the extent the Option and/or SAR was
exercisable immediately prior to such termination of employment.
If, however, any termination of employment is due to retirement
or permanent disability, the individual shall have the right after
such termination of employment, subject to the provisions of
subsections (5) and (6) above, to exercise any outstanding Option
and/or SAR in full at any time during the remaining term provided
therefor in the related agreements. Whether any termination of
employment is due to retirement or permanent disability shall be
determined by the Committee.
If an individual shall die while entitled to exercise an Option
and/or SAR, the individual's estate, personal representative or
beneficiary, as the case may be, shall have the right, subject to the
provisions of subsections (5) and (6) above, to exercise such Option
and/or SAR at any time within 12 months from the date of the
optionee's death, to the extent that the optionee was entitled to
exercise the same on the day immediately prior to the optionee's
death.
d. EFFECT OF EXERCISE OF OPTIONS AND SARS. The right of an
individual to exercise an Option or SAR shall terminate to the extent that
such Option or SAR is exercised and, to the extent that a SAR relates to a
specific Option, the exercise of the SAR shall terminate a corresponding
portion of the related Option and, conversely, to the extent that such
optionee exercises the related Option, a corresponding portion of such SAR
shall terminate.
e. OPTIONS AND SARS GRANTED BY OTHER CORPORATIONS. Options and
SARs may be granted under the Plan from time to time in substitution for
stock options and stock appreciation rights held by employees of
corporations who become Key Employees as a result of a merger or
consolidation of the employer corporation with the Company or a Subsidiary,
or the acquisition by the Company or a Subsidiary of assets of the employer
corporation, or the acquisition by the Company or a Subsidiary of stock of
the employer corporation, with the result that such employer corporation
becomes a Subsidiary.
f. OPTIONS AND SARS GRANTED TO NONEMPLOYEE DIRECTORS. Options
and SARs granted to Nonemployee Directors shall be subject to all
provisions and terms of this Plan otherwise applicable thereto, except that
notwithstanding such other provisions and terms of this Plan to the
contrary, all Options and SARs granted to Nonemployee Directors shall be
subject to the following provisions:
(1) TYPE AND TERMS OF AWARDS. Each Option granted to a
Nonemployee Director shall be a Non-qualified Stock Option and
shall be automatically accompanied by a SAR for the entire number
of shares subject to the Option. The agreement with respect to
each such grant shall provide that the accompanying SAR, if and to
the extent exercised, shall be automatically paid one-half in cash
and one-half in shares of Common Stock except that no fractional
shares of Common Stock shall be issued. All Options and SARs
granted to Directors shall have an exercise price equal to the
Market Value Per Share on the date of grant, shall become
exercisable on and after the first anniversary of the date of
grant (except as provided in Section 8) and shall have a term of
ten years unless earlier terminated as provided in (3) below.
(2) GRANTING OF AWARDS. Each Nonemployee Director serving on
February 15, 1990 shall be granted, effective as of such date,
Options and SARs with respect to 10,000 shares of Common Stock;
provided that such grant shall be subject to (a) the approval of
the Plan by the shareholders of the Company at their 1990 annual
meeting and (b) the surrender for cancellation of options
previously granted by the Company to such Nonemployee Director
covering a number of shares of Common Stock equal to the lesser of
(i) 10,000 shares or (ii) the total number of shares subject to
such previously granted options. Individuals who later become
Nonemployee Directors shall be automatically granted Options and
SARs with respect to 10,000 shares of Common Stock effective as of
the date on which they become a member of the Board. Commencing
with the regular annual meeting of shareholders of the Company in
1991, each Nonemployee Director shall be automatically granted
Options and SARs with respect to an additional 1,000 shares of
Common Stock effective as of the date of each regular annual
meeting at which he is reelected or continues to serve as a
Director.
(3) TERMINATION OF SERVICE. In the event that a Nonemployee
Director ceases to be a member of the Board, Options and SARs then
held by such individual shall be exercisable, subject to
subsections c.(5) and (6) above, only within 12 months after such
termination of service and only to the same extent that such
Options and SARs were exercisable on the date of such termination;
provided, however, that if the termination is due to the death,
permanent disability or retirement of the individual pursuant to a
Company policy, all Options and SARs held by such Nonemployee
Director shall be exercisable after the date of such termination
of service in full at any time during the remaining term provided
therefor in the related agreements, subject to subsections c.(5)
and (6) above.
6. RECAPITALIZATION
The aggregate number of shares stated in Section 3a, the number
of shares of Common Stock to which each outstanding Option and SAR relates,
and the exercise price in respect of each such Option and SAR shall be
adjusted in an equitable manner determined by the Committee, in its sole
discretion and without liability to any person, in the event of (i) a
subdivision or consolidation of shares of Common Stock or other capital
adjustments, (ii) the payment of a stock dividend or a recapitalization or
(iii) a "corporate transaction", as such term is defined in Treasury
Regulation Section 1.425-1(a)(1)(ii), or any other transaction which, in
the opinion of the Committee, is similar to a "corporate transaction", as
defined by the said Treasury Regulations as in effect on January 1, 1990,
including without limitation any spin-off or other distribution to the
security holders of the Company of securities or property of the Company or
a Subsidiary. The Committee may exercise its discretion to make any such
adjustments on an optionee-by-optionee basis and with respect to all or
only some of the Options or SARs held by an optionee.
7. MERGER OR CONSOLIDATION
Except as otherwise provided in Section 8 below, after a merger
of one or more corporations into the Company in which the Company shall
survive, or after a consolidation of the Company and one or more
corporations, in which the resulting corporation remains, as an
independent, publicly-owned corporation, an optionee shall, at the same
cost, be entitled upon the exercise of an Option or SAR to receive (subject
to any required action by stockholders and the discretion of the Committee
as to the payment of cash with respect to a SAR) such stock, cash and/or
securities of the surviving or resulting corporation as the board of
directors of such corporation, in its sole discretion and without liability
to any person, shall determine to be equivalent, as nearly as practicable,
to the nearest whole number and class of shares of Common Stock or other
securities that were then subject to such Option or SAR and such shares of
stock or other securities shall, after such merger or consolidation, be
deemed to be shares of Common Stock for all purposes of the Plan and any
agreement.
8. CHANGE IN CONTROL
In the event of a Change in Control (as defined below), then,
notwithstanding any other term of this Plan or any agreement to the
contrary, any and all outstanding Options and SARs not fully vested shall
automatically vest in full and, except as provided below with respect to a
person subject to Section 16 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), be immediately exercisable. The date on
which such accelerated vesting and immediate exercisability shall occur
(the "Acceleration Date") shall be the date of the occurrence of the Change
in Control.
A "Change in Control" shall be deemed to have occurred if:
(a) any "person," as such term is used in Section 13(d) and
14(d) of the Exchange Act (other than the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as
their ownership of stock of the Company) together with its
"Affiliates" and "Associates", as such term is defined in Rule 12b-2
of the Exchange Act, is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of the combined
voting power of the Company's then outstanding securities;
(b) during any period of two consecutive years (not including
any period prior to the effective date of this Plan), individuals who
at the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction described
in clause (a), (c) or (d) of this definition) whose election by the
Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other company other than (i) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 80% of the
combined voting power of the voting securities of the Company (or such
surviving entity) outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement
a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 25% of the
combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company adopt a plan of complete
liquidation of the Company or approve an agreement for the sale,
exchange or disposition by the Company of all or a significant portion
of the Company's assets. For purposes of this clause (d), the term
"the sale, exchange or disposition by the Company of all or a
significant portion of the Company's assets" shall mean a sale or
other disposition transaction or series of related transactions
involving assets of the Company or any Subsidiary (including the stock
of any Subsidiary) in which the value of the assets or stock being
sold or otherwise disposed of (as measured by the purchase price being
paid therefor or by such other method as the Board determines is
appropriate in a case where there is no readily ascertainable purchase
price) constitutes more than 25% of the fair market value of the
Company (as hereinafter defined). For purposes of the preceding
sentence, the "fair market value of the Company" shall be the
aggregate market value of the outstanding shares of common stock of
the Company (on a fully diluted basis) plus the aggregate market value
of the Company's other outstanding equity securities. The aggregate
market value of the shares of common stock of the Company shall be
determined by multiplying the number of shares of the Company's common
stock (on a fully diluted basis) outstanding on the date of the
execution and delivery of a definitive agreement with respect to the
transaction or series of related transactions (the "Transaction Date")
by the average closing price of the shares of common stock of the
Company for the ten trading days immediately preceding the Transaction
Date. The aggregate market value of any other equity securities of
the Company shall be determined in a manner similar to that prescribed
in the immediately preceding sentence for determining the aggregate
market value of the shares of common stock of the Company or by such
other method as the Board shall determine is appropriate.
Notwithstanding the foregoing however, a Change in Control shall
not be deemed to have occurred if, prior to the time a Change in Control
would otherwise be deemed to have occurred pursuant to the above
provisions, the Board determines otherwise.
If during the 60-day period following any such Acceleration Date
or, with respect to an Option or SAR granted to an officer or director
subject to Section 16(b) of the Exchange Act, the 60-day period following
the earlier of the date that Section 16(b) of the Exchange Act ceases to
apply to such person or six months following the date of grant of such
Option or SAR (but not to exceed the remaining term of such Option or SAR),
a participant (or beneficiary thereof) elects to exercise an Option or SAR,
the holder shall receive in cash whichever of the following amounts is
applicable:
(i) with respect to an acquisition of Common Stock
described in clause (a) of the definition of Change in Control, an
amount equal to the Acquisition Spread (as defined below);
(ii) with respect to a change in composition of the Board
described in clause (b) of the definition of Change in Control, an
amount equal to the Spread (as defined below); or
(iii) with respect to stockholder approval of an agreement or
adoption of a plan described in clause (c) or (d) of the
definition of Change in Control, an amount equal to the Merger
Spread (as defined below).
Notwithstanding the foregoing provisions of this Section 8, in the case of
an exercise in respect of an Incentive Stock Option, the holder may not
receive an amount in excess of the maximum amount that will enable such
option to continue to qualify as an Incentive Stock Option.
As used in this Section 8, the following terms shall have the
meaning indicated:
(1) The term "Acquisition Price Per Share" shall mean the
greater of (i) the highest price paid by a person (or an Affiliate
or Associate thereof) for any share of Common Stock acquired prior
to, but in connection with, a Change in Control described in clause
(a) of the definition of a Change in Control or (ii) the highest
Market Value Per Share for any day during the 60-day period ending
on the date the Option or SAR is exercised.
(2) The term "Acquisition Spread" shall mean an amount equal
to the product obtained by multiplying (i) the excess of (A) the
Acquisition Price Per Share over (B) the price per share of Common
Stock at which the Option or SAR is exercisable, by (ii) the number
of shares of Common Stock with respect to which such such Option or
SAR is being exercised.
(3) The term "Merger Price Per Share" shall mean the greater
of (i) the fixed or formula price for the acquisition of shares of
Common Stock specified in such agreement or adoption, if such fixed
or formula price is determinable on the date on which such Option or
SAR is exercised, and (ii) the highest Market Value Per Share for
any day during the 60-day period ending on the date on which such
Option or SAR is exercised.
(4) The term "Merger Spread" shall mean an amount equal to
the product obtained by multiplying (i) the excess of (A) the Merger
Price Per Share over (B) the price per share of Common Stock at
which the Option or SAR is exercisable, by (ii) the number of shares
of Common Stock with respect to which such Option or SAR is being
exercised.
(5) The term "Spread" shall mean an amount equal to the
product obtained by multiplying (i) the excess of (A) the highest
Market Value Per Share for any day during the 60-day period ending
on the date the Option or SAR is exercised over (B) the price per
share of Common Stock at which the Option or SAR is exercisable, by
(ii) the number of shares of Common Stock with respect to which the
Option or SAR is being exercised.
The Company intends that this Section 8 shall comply with the
requirements of Rule 16b-3 and any future rules promulgated in substitution
therefor ("the Rule") under the Exchange Act during the term of the Plan.
Should any provision of this Section 8 not be necessary to comply with the
requirements of the Rule or should any additional provisions be necessary
for this Section 8 to comply with the requirements of the Rule, the Board
may amend the Plan to add to or modify the provisions of the Plan
accordingly.
9. EMPLOYEE'S AGREEMENT
If, at the time of the exercise of any Option or SAR, in the
opinion of counsel for the Company, it is necessary or desirable, in order
to comply with any then applicable laws or regulations relating to the sale
of securities, for the individual exercising the Option or SAR to agree to
hold any shares issued to the individual for investment and without
intention to resell or distribute the same and for the individual to agree
to dispose of such shares only in compliance with such laws and
regulations, the individual will, upon the request of the Company, execute
and deliver to the Company a further agreement to such effect.
10. WITHHOLDING FOR TAXES
Any cash payment under the Plan shall be reduced by any amounts
required to be withheld or paid with respect thereto under all present or
future federal, state and local tax and other laws and regulations that may
be in effect as of the date of each such payment ("Tax Amounts"). Any
issuance of Common Stock pursuant to the exercise of an Option or other
distribution of Common Stock under the Plan shall not be made until
appropriate arrangements have been made for the payment of any amounts that
may be required to be withheld or paid with respect thereto. Such
arrangements may, at the discretion of the Committee, include allowing the
optionee to tender to the Company shares of Common Stock owned by optionee,
or to request the Company to withhold a portion of the shares of Common
Stock being acquired pursuant to the exercise or otherwise distributed to
optionee, which have a Market Value Per Share as of the date of such
exercise, tender or withholding that is not greater than the sum of all Tax
Amounts, together with payment of any remaining portion of all Tax Amounts
in cash or by check payable and acceptable to the Company.
11. TERMINATION OF AUTHORITY TO GRANT AWARDS
No Options or SARs may be granted pursuant to this Plan after
December 31, 1999.
12. AMENDMENT AND TERMINATION
The Board may from time to time and at any time alter, amend,
suspend, discontinue or terminate this Plan and any grants hereunder;
provided, however, that no such action of the Board may, without the
approval of the stockholders of the Company, alter the provisions of the
Plan so as to (i) increase the maximum number of shares of Common Stock
that may be subject to grants and distributed in the payment of exercises
under the Plan (except as provided in Section 3b); (ii) change the class of
employees eligible to receive grants under the Plan; (iii) extend beyond
ten years the maximum terms of Options or SARs granted under the Plan or
extend the term of the Plan; or (iv) change the operation of Section 5f.,
concerning automatic grants to Nonemployee Directors, unless, in each case,
such approval is not required to meet the requirements of the Rule.
Section 5f. may not be amended more than once every six months, other than
to comport with changes in the Internal Revenue Code, the Employee
Retirement Income Security Act or the rules thereunder.
13. PREEMPTION BY APPLICABLE LAWS AND REGULATIONS
Anything in the Plan or any agreement entered into pursuant to
the Plan to the contrary notwithstanding, if, at any time specified herein
or therein for the making of any determination, the issuance or other
distribution of shares of Common Stock, or the payment of consideration to
an employee as a result of the exercise of any SAR, as the case may be, any
law, regulation or requirement of any governmental authority having
jurisdiction in the premises shall require either the Company or the
employee (or the employee's beneficiary), as the case may be, to take any
action in connection with any such determination, the shares then to be
issued or distributed, or such payment, the issue or distribution of such
shares or the making of such determination or payment, as the case may be,
shall be deferred until such action shall have been taken.
14. CHANGE IN CONTROL LIMITATION
Notwithstanding any other provision in the Plan, to the extent
that the acceleration of exercisability of an Option or SAR under this Plan
following a Change in Control, when aggregated with other payments or
benefits to the participant, whether or not payable pursuant to this Plan,
would, as determined by tax counsel selected by the Company, result in
"excess parachute payments" (as defined in Section 280G of the Code) such
parachute payments or benefits provided to a participant under this Plan
shall be reduced to the extent necessary so that no portion thereof shall
be subject to the excise tax imposed by Section 4999 of the Code, but only
if, by reason of such reduction, the participant's net after tax benefit
shall exceed the net after tax benefit if such reduction were not made.
"Net after tax benefit" shall mean the sum of (i) all payments and benefits
which a participant receives or is then entitled to receive that would
constitute a "parachute payment" within the meaning of Section 280G of the
Code, less (ii) the amount of federal income taxes payable with respect to
the payments and benefits described in (i) above calculated at the maximum
marginal income tax rate for the year in which such payments and benefits
shall be paid to the participant (based upon the rate for such year as set
forth in the Code at the time of the first payment of the foregoing), less
(iii) the amount of excise taxes imposed with respect to the payments and
benefits described in (i) above by Section 4999 of the Code.
15. MISCELLANEOUS
a. NO EMPLOYMENT CONTRACT. Nothing contained in the Plan shall
be construed as conferring upon any employee the right to continue in the
employ of the Company or any Subsidiary.
b. EMPLOYMENT WITH SUBSIDIARIES. Employment by the Company for
the purpose of this Plan shall be deemed to include employment by, and to
continue during any period in which an employee is in the employment of,
any Subsidiary.
c. NO RIGHTS AS A STOCKHOLDER. A participant shall have no
rights as a stockholder with respect to shares covered by such
participant's Option or SAR until the date of the issuance of shares to the
participant pursuant thereto. No adjustment will be made for dividends or
other distributions or rights for which the record date is prior to the
date of such issuance.
d. NO RIGHT TO CORPORATE ASSETS. Nothing contained in the Plan
shall be construed as giving any participant, such participant's
beneficiaries or any other person, any equity or other interest of any
kind, in any assets of the Company or any Subsidiary or creating a trust of
any kind or a fiduciary relationship of any kind between the Company or a
Subsidiary and any such person.
e. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the
Plan shall be construed to prevent the Company or any Subsidiary from
taking any corporate action that is deemed by the Company or such
Subsidiary to be appropriate or in its best interest, whether or not such
action would have an adverse effect on the Plan or any grant made under the
Plan. No participant, beneficiary or other person shall have any claim
against the Company or any Subsidiary as a result of any such action.
f. NON-ASSIGNABILITY. A participant shall not have the power or
right to sell, exchange, pledge, transfer, assign or otherwise encumber or
dispose of such participant's interest in any grant under the Plan nor
shall such interest be subject to seizure for the payment of a
participant's debts, judgments, alimony, or separate maintenance or be
transferable by operation of law in the event of a participant's bankruptcy
or insolvency and to the extent any such interest arising under the Plan is
awarded to a spouse pursuant to any divorce proceeding, such interest shall
be deemed to be terminated and forfeited notwithstanding any vesting
provisions or other terms herein or in the agreement evidencing such award.
g. APPLICATION OF FUNDS. The proceeds received by the Company
from the sale of shares pursuant to the Plan will be used for general
corporate purposes.
h. SALE OF SUBSIDIARY OR ASSETS. In the event a Key Employee
ceases to be employed by the Company or a Subsidiary as a result of a sale
or other disposition by the Company of a Subsidiary or all or part of the
business operations of the Company or a Subsidiary, the Committee, in its
sole discretion, may accelerate the exercisability of any grant under the
Plan, in whole or in part, as it deems appropriate.
i. GOVERNING LAW; CONSTRUCTION. All rights and obligations under
the Plan shall be governed by, and the Plan shall be construed in
accordance with, the laws of the State of Texas without regard to the
principles of conflicts of laws. Titles and headings to Sections herein
are for purposes of reference only, and shall in no way limit, define or
otherwise affect the meaning or interpretation of any provisions of the
Plan.
Amended: February 17, 1994
EXHIBIT 5.1
November 18, 1994
Board of Directors
Tech-Sym Corporation
10500 Westoffice Drive
Houston, Texas 77042
Gentlemen:
As General Counsel and Secretary to Tech-Sym Corporation, a Nevada
corporation (the "Company"), I am familiar with the action taken in
connection with the Company's Registration Statement on Form S-8 (the
"Registration Statement") relating to the registration under the Securities
Act of 1933, as amended, of 288,000 shares of common stock, $0.10 par value
(the "Common Stock"), of the Company issuable under the Tech-Sym
Corporation 1990 Stock Option Plan, as amended (the "Plan").
In such capacity, I have examined such corporate records and documents,
certificates of corporate and public officials and such other instruments
as I have deemed necessary for the purposes of the opinions contained
herein. I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to me as originals and the conformity with the
original of all documents submitted to me as copies.
Based on the foregoing and having due regard to such legal considerations
as I deem relevant, I am of the opinion that the shares of Common Stock to
be issued by the Company pursuant to the Plan have been duly authorized,
and that the Common Stock, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
J. Rankin Tippins
General Counsel and Secretary
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of our report
dated February 24, 1994, which appears on page 36 of the 1993 Annual Report
to Shareholders of Tech-Sym Corporation which is incorporated by reference
in Tech-Sym Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears on page S-2 of
such Annual Report on Form 10-K.
Price Waterhouse LLP
Houston, Texas
November 18, 1994
