As filed with the Securities and Exchange Commission on March 12, 2004
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ENGlobal Corporation
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(Exact name of registrant as specified in its charter)
Nevada 88-0322261
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
600 Century Plaza Drive, Suite 140, Houston, Texas 77073-6033
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(Address of principal executive offices) (Zip Code)
ENGLOBAL CORPORATION 2004 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Michael L. Burrow Copy to:
Chief Executive Officer Kathryn K. Lindauer
ENGlobal Corporation Jenkens & Gilchrist, P.C.
600 Century Plaza Drive, Suite 140 2200 One American Center
Houston, Texas 77073 600 Congress Avenue
(281) 821-3200 Austin, Texas 78701
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of each class Proposed maximum Proposed maximum Amount of
of securities to Amount to be offering price aggregate offering registration
be registered Registered (1) per share (2)(3) price (2)(3) fee (3)
------------- -------------- ---------------- ------------ -------
Common 1,200,000 $2.00 $2,406,000 $304.84
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(1) Shares reserved for issuance under the ENGlobal Corporation 2004 Employee
Stock Purchase Plan (the "Plan"). Pursuant to Rule 416, this registration
statement also covers such additional shares as may hereinafter be offered
or issued to prevent dilution resulting from stock splits, stock dividends,
or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per
share of the Common Stock offered hereunder pursuant to the Plan is based
on 1,200,000 shares of Common Stock reserved for issuance under the Plan,
but not subject to outstanding stock options or other awards, at a price
per share of $2.00, which is the average of the highest and lowest selling
price per share of Common Stock on the American Stock Exchange on March 10,
2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information *
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* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this registration statement in accordance with Rule 428 under
the Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference in this registration statement
the following documents previously filed by the Company with the Securities and
Exchange Commission (the "Commission"):
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002 filed with the Commission on March 27, 2003;
(2) the Company's Schedule 14A filed with the Commission on April 30,
2003;
(3) the Company's Quarterly Report on Form 10-Q for the three-month period
ended March 31, 2003 filed with the Commission on May 13, 2003;
(4) the Company's Current Report on Form 8-K filed with the Commission on
May 14, 2003;
(5) the Company's Form S-8 filed with the Commission on June 10, 2003;
(6) the Company's Current Report on Form 8-K filed with the Commission on
July 7, 2003;
(7) the Company's Current Report on Form 8-K filed with the Commission on
July 15, 2003;
(8) the Company's Quarterly Report on Form 10-Q for the three-month period
ended June 30, 2003 filed with the Commission on August 14, 2003;
(9) the Company's Current Report on Form 8-K filed with the Commission on
August 14, 2003;
(10) the Company's Current Report on Form 8-K filed with the Commission on
August 19, 2003;
(11) the Company's Current Report on Form 8-K filed with the Commission on
October 20, 2003;
(12) the Company's Current Report on Form 8-K filed with the Commission on
November 3, 2003;
(13) the Company's Current Report on Form 8-K filed with the Commission on
November 12, 2003;
(14) the Company's Quarterly Report on Form 10-Q for the three-month period
ended September 30, 2003 filed with the Commission on November 13,
2003; and
(15) the description of Common Stock, par value $.001 per share (the
"Common Stock"), of the Company set forth in the Registration
Statement on Form 8-A12B, filed with the Commission on June 11, 1998,
including any amendment or report filed for the purpose of updated
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, subsequent to the date of this
registration statement shall be deemed to be incorporated herein by reference
and to be part hereof from the date of filing of such documents until such time
as there shall have been filed a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts And Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation provide that none of its directors
or officers shall be personally liable to the Company or its shareholders for
monetary damages for any breach of fiduciary duty by such person as a director
or officer, except that a director or officer shall be liable, to the extent
provided by applicable law, (1) for acts or omissions which involve intentional
misconduct, fraud, or a knowing violation of law, or (2) for the payment of
dividends in violation of restrictions imposed by Section 78.300 of the Nevada
General Corporation Law ("GCL"). The effect of these provisions is to eliminate
the rights of the Company's shareholders, either directly or through
stockholders' derivative suits brought on behalf of the Company, to recover
monetary damages from a director or officer for breach of the fiduciary duty of
care as a director or officer except in those instances provided under the
Nevada GCL.
In addition, the Company has adopted provisions in its bylaws that require
it to indemnify its directors, officers, and certain other representatives
against expenses, liabilities, and other matters arising out of their conduct on
the Company's behalf, or otherwise referred to in or covered by applicable
provisions of the Nevada GCL, to the fullest extent permitted by the Nevada GCL.
Section 78.751 of the Nevada GCL provides that a corporation may indemnify
its directors and officers against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the director or officer in connection with an action, suit or proceeding in
which the director or officer has been made or is threatened to be made a party,
if the director or officer acted in good faith and in a manner which the
director or officer reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal proceeding, had
no reason to believe the director's or officer's conduct was unlawful. Any such
indemnification may be made by the corporation only as ordered by a court or as
authorized in a specific case upon a determination made in accordance with the
Nevada GCL that such indemnification is proper in the circumstances.
Indemnification may not be made under the Nevada GCL for any claim, issue,
or matter as to which the director or officer has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines that in view of all the
circumstances of the case, that the director or officer is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
To the extent that a director or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit, or
proceeding or in defense of any claim, issue, or matter therein, the director or
officer must be indemnified under the Nevada GCL by the corporation against
expenses, including attorney's fees, actually and reasonably incurred by the
director or officer in connection with the defense.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to the Company's directors, officers and controlling persons
pursuant to the foregoing provisions or otherwise, the Company has been advised
that, in the opinion of the Commission, such indemnification is against public
policy as expressed in the 1933 Act and is, therefore, unenforceable. If a claim
for indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer, or controlling
person of the Company 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 Company 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 1933 Act and
will be governed by the final adjudication of such issue.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 Amended and Restated Bylaws of ENGlobal Corporation, dated August 8,
2002 (filed herewith) as amended.
4.2 Restated Articles of Incorporation of ENGlobal Corporation dated
August 8, 2002, incorporated by reference on the Company's Quarterly
Report on Form-10Q for the quarter ended September 30, 2002 filed with
the Securities and Exchange Commission on November 14, 2002 (No.
001-14217), as amended.
5.1 Opinion of Jenkens & Gilchrist, P.C. (filed herewith).
10.1 ENGlobal Corporation 2004 Employee Stock Purchase Plan (filed
herewith).
23.1 Consent of Hein & Associates LLP (filed herewith).
23.2 Consent of Jenkens & Gilchrist (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
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;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such indemnification is
against public policy as expressed in the Securities 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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 the
requirements for filing this Registration Statement 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, Texas, on March
10, 2004:
ENGLOBAL CORPORATION
By: /s/ Michael L. Burrow
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Michael L. Burrow
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated. Each person whose signature appears below hereby authorizes and
appoints each of William A. Coskey and Michael L. Burrow as his or her
attorney-in-fact to sign on his or her behalf individually and in the capacity
stated below all amendments and post-effective amendments to this registration
statement as that attorney-in-fact may deem necessary or appropriate.
Signature Capacity Date
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/s/ Michael L. Burrow Chief Executive Officer and March 8, 2004
--------------------- Chairman of the Board and Directors
Michael L. Burrow
/s/ William A. Coskey President, Chief Operating Officer March 8, 2004
--------------------- and Director
William A. Coskey
/s/ Robert W. Raiford Chief Financial Officer and March 8, 2004
--------------------- Treasurer
Robert W. Raiford
/s/ Hulda L. Coskey Director March 8, 2004
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Hulda L. Coskey
/s/ Jimmie N. Carpenter Director March 8, 2004
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Jimmie N. Carpenter
/s/ David W. Gent Director March 8, 2004
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David W. Gent
/s/ Randall B. Hale Director March 8, 2004
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Randall B. Hale
/s/ David C. Roussel Director March 8, 2004
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David C. Roussel
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Amended and Restated Bylaws, of ENGlobal Corporation, dated August 8,
2002 (filed herewith) as amended.
4.2 Restated Articles of Incorporation of ENGlobal Corporation dated
August 8, 2002, incorporated by reference on the Company's Quarterly
Report on Form-10Q for the quarter ended September 30, 2002 filed with
the Securities and Exchange Commission on November 14, 2002 (No.
001-14217), as amended.
5.1 Opinion of Jenkens & Gilchrist, P.C. (filed herewith).
10.1 ENGlobal Corporation 2004 Employee Stock Purchase Plan (filed
herewith).
23.1 Consent of Hein & Associates LLP (filed herewith).
23.2 Consent of Jenkens & Gilchrist (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).