Securities Registration: Employee Benefit Plan (s-8)
June 11 2020 - 12:49PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 11,
2020.
Registration No. 333-
UNITED
STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ENGLOBAL
CORPORATION
(Exact
name of registrant as specified in its charter)
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Nevada
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88-0322261
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(State or Other Jurisdiction of Incorporation or
Organization)
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(I.R.S. Employer Identification No.)
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654 N. Sam Houston Parkway E., Suite 400
Houston, Texas 77060-5914
(Address
of Principal Executive Offices) (Zip Code)
ENGLOBAL
CORPORATION AMENDED AND RESTATED 2009 EQUITY INCENTIVE
PLAN
(Full
Title of the plan)
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Name,
Address and Telephone
Number
of Agent for Service:
Mark A. Hess
Chief Financial Officer, Treasurer and Secretary
ENGlobal Corporation
654 N. Sam Houston Parkway E., Suite 400
Houston, Texas 77060
(281) 878-1000
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Copy of
Communications to:
E. James Cowen
Porter Hedges LLP
1000 Main Street, 36th Floor
Houston, Texas 77002-6336
(713) 226-6000
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Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company” and emerging
growth company” in Rule 12b-2 of the Exchange Act. (Check
one):
|
Large
accelerated filer ☐
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Accelerated
filer ☐
|
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION
OF REGISTRATION FEE
|
Title of
Securities to be Registered (1)
|
Amount
to
be
Registered(1)(2)
|
Proposed Maximum
Offering
Price per
Share(3)
|
Proposed
Maximum
Aggregate
Offering
Price(3)
|
Amount
of
Registration Fee
(3)
|
|
Common Stock, par
value $0.001 per share
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625,109
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$1.13
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$706,373
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$92
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(1)
This
registration statement (this “Registation Statement”)
registers the issuance of 625,109 shares of the common stock of
ENGlobal Corporation (the “Registrant”), par value
$0.001 per share (the “Common Stock”), reserved for
issuance under the ENGlobal Corporation Amended and Restated 2009
Equity Incentive Plan (the “Plan”).
(2)
Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall
include an additional indeterminate number of shares of Common
Stock that may become issuable under the Plan as a result of (i)
any future stock splits, stock dividends or similar adjustments of
the Registrant’s outstanding Common Stock and (ii) the
anti-dilution provisions of the Plan.
(3)
Estimated
solely for the purpose of calculating the registration fee pursuant
to Rules 457(c) and (h) under the Securities Act. The maximum
offering price per share is based on the average of the high and
low prices of the Common Stock as reported on the NASDAQ Capital
Market on June 8, 2020.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ENGlobal
Corporation (the “Registrant”) prepared this
Registration Statement in accordance with the requirements of Form
S-8 under the Securities Act of 1933, as amended (the
“Securities Act”), to register 625,109 shares of common
stock, par value $0.001 per share (the “Common Stock”),
of the Registrant that may be issued pursuant to the ENGlobal
Corporation Amended and Restated 2009 Equity Incentive Plan (the
“Plan”). The documents containing the information
specified in Part I of this Registration Statement will be sent or
given to participants in the Plan, as specified by Rule 428(b)(1)
promulgated under the Securities Act. Such documents need not be
filed with the Securities and Exchange Commission (the
“Commission”) either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 promulgated under the Securities Act. These documents and
the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the
requirement of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by
Reference.
The
following documents, which have previously been filed by the
Registrant with the Commission under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), are incorporated
herein by reference:
(a) the
Registrant’s Annual Report on Form 10-K for the year
ended December 28, 2019, filed with the Commission on March
27, 2020 (File No. 001-14217), including the portions of the
Registrant’s Definitive Proxy Statement on Schedule 14A filed
with the Commission on April 27, 2020, incorporated by reference
therein (File No. 001-14217);
(b) the
Registrant’s Quarterly Report on Form 10-Q for the three
months ended March 28, 2020, filed with the Commission on
May 7, 2020 (File No. 001-14217);
(c) the
Registrant’s Current Reports on Form 8-K, filed with the
Commission on April 16, 2020, April 24, 2020, May 26, 2020 and June
3, 2020 (File No. 001-14217); and
(d) the
description of the Registrant’s Common Stock contained in the
Registrant’s Registration Statement on Form 8-A, filed with
the Commission on December 17, 2007 (File No. 001-14217), including
any amendments or reports filed for the purpose of updating such
description.
In
addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
(excluding any information furnished pursuant to Item 2.02 or Item
7.01, or any corresponding information furnished under Item 9.01,
on any Current Report on Form 8-K) prior to the filing of a
post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be
incorporated by reference herein, as the case may be, modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
Item 4. Description of
Securities.
Not
applicable.
Item 5. Interests of Named Experts and
Counsel.
None.
Item 6. Indemnification of Directors and
Officers.
The
Registrant’s Articles of Incorporation provide that none of
its directors or officers shall be personally liable to the
Registrant or its stockholders 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 Revised Statutes
(“NRS”). The effect of these provisions is to eliminate
the rights of the Registrant’s stockholders, either directly
or through stockholders’ derivative suits brought on behalf
of the Registrant, 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
NRS.
The
Registrant 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 Registrant’s behalf, or
otherwise referred to in or covered by applicable provisions of the
NRS, to the fullest extent permitted by the NRS.
In
addition, the Registrant has entered into indemnification
agreements with its directors and executive officers, under which
the Registrant has agreed to indemnify such directors and officers
against expenses (including reasonable attorneys’ fees) and
other types of losses incurred by reason of such directors and
officers serving the Registrant, or other enterprise at the
Registrant’s request, as an officer, director, employee, or
agent, subject to certain limitations. Under the indemnification
agreements, the Registrant has also agreed to advance the
indemnitees’ expenses, and each indemnitee has undertaken to
repay the advances should a court ultimately determine that
indemnification was not authorized.
Section
78.7502 of the NRS 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, provided for
in the articles of incorporation, bylaws, or another agreement with
the corporation, or as authorized in a specific case upon a
determination made in accordance with the NRS that such
indemnification is proper in the circumstances.
Indemnification
may not be made under the NRS 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 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 NRS by the corporation against expenses,
including attorney’s fees, actually and reasonably incurred
by the director or officer in connection with the
defense.
Item 7. Exemption from Registration
Claimed.
Not
applicable.
Item 8. Exhibits.
See
Index to Exhibits, attached hereto, which Index to Exhibits is
hereby incorporated into this Item 8.
Item 9. Undertakings.
(a)
The
Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration
Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 this Registration Statement; and
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; 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 a plan’s annual report pursuant to
Section 15(d) under the Exchange Act, that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at the 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 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 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 this 11th day of June,
2020.
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ENGLOBAL
CORPORATION
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By:
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/s/ Mark A. Hess
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Mark A.
Hess
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Chief Financial
Officer and Treasurer
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KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William A. Coskey, P.E. and Mark A.
Hess, and each of them, either of whom may act without joinder of
the other, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or
all pre- and post-effective amendments and supplements to this
Registration Statement, and to file the same, or cause to be filed
the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
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,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them, or the substitute
or substitutes of either of them, may lawfully do or cause to be
done by virtue hereof.
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 date indicated.
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Signature
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Title
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Date
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/s/
William A. Coskey, P.E.
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Chief
Executive Officer, President, Chairman of the Board and
Director
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June
11, 2020
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William
A. Coskey, P.E.
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(Principal
Executive Officer)
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/s/
Mark A. Hess
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Chief
Financial Officer and Treasurer (Principal Financial and Accounting
Officer)
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June
11, 2020
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Mark A.
Hess
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/s/
David W. Gent
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Director
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June
11, 2020
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David
W. Gent
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/s/
Randall B. Hale
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Director
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June
11, 2020
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Randall
B. Hale
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/s/
Kevin M. Palma
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Director
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June
11, 2020
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Kevin
M. Palma
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/s/
David C. Roussel
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Director
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June
11, 2020
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David
C. Roussel
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INDEX TO EXHIBITS
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Exhibit No.
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Description
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ENGlobal
Corporation Amended and Restated 2009 Equity Incentive Plan
(incorporated herein by reference to Appendix A to
Registrant’s Definitive Proxy Statement on Schedule 14A filed
with the Commission on April 27, 2020).
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Opinion
of Holland & Hart LLP with respect to the legality of the
securities.
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Consent
of Moss Adams LLP, Houston, Texas.
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Consent
of Holland & Hart LLP (included in Exhibit 5.1).
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Power
of Attorney (included on signature page of this Registration
Statement).
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* Filed
herewith.
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