As filed with the Securities and Exchange Commission on August 11, 2009
Registration No. 333-______
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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.)
654 N. Sam Houston Parkway E., Suite 400
Houston, Texas 77060
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(Address of principal executive offices) (Zip Code)
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ENGLOBAL CORPORATION 2009 EQUITY INCENTIVE PLAN
(Full title of the plan)
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Natalie S. Hairston Copy to:
Chief Governance Officer Kathryn K. Lindauer
ENGlobal Corporation Winstead PC
654 N. Sam Houston Parkway E., Suite 400 401 Congress Ave., Suite 2100
Houston, Texas 77060 Austin, Texas 78701
(281) 878-1000 (Name, address and telephone number,
including area code, of agent for service)
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Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer," and "smaller
reporting company" in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer _____ Accelerated filer X
Non-accelerated filer _____ Smaller reporting company _____
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered(1)(2) per Share(3) Offering Price(3) Fee(3)
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Common Stock, $.001
par value per share 433,125 shares N/A N/A N/A
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(1) This Registration Statement covers an aggregate of 433,125 shares of common
stock, par value $0.001 per share (the "Common Stock") of ENGlobal
Corporation ("ENGlobal" or the "Registrant") for offer or sale under the
ENGlobal Corporation 2009 Equity Incentive Plan (the "2009 Plan"). All
433,125 shares registered hereunder (the "Carryover Shares") were
previously registered under Registration Statement 333-127803, as filed
with the Securities and Exchange Commission (the "Commission") on August
24, 2005 (the "Prior Registration Statement"), for offer or sale under the
Registrant's 1998 Incentive Plan (the "Prior Plan"), and which now may be
issued under the 2009 Plan.
(2) Pursuant to Rule 416, this Registration Statement is deemed to include
additional shares of common stock issuable under the terms of the 2009 Plan
to prevent dilution resulting from any further stock split, stock dividend
or similar transaction.
(3) The filing fee in connection with the Carryover Shares registered under the
Prior Registration Statement was previously paid by the Registrant.
Therefore, no further filing fee with respect to the Carryover Shares is
required in accordance with Interpretation 98 under Section G of the
Commission's Division of Corporate Finance Manual of Publicly Available
Telephone Interpretations (July 1997) and Instruction E to the General
Instructions to Form S-8. A post-effective amendment to the Prior
Registration Statement to deregister those shares is being filed
contemporaneously with the filing of this Registration Statement.
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EXPLANATORY NOTE
ENGlobal Corporation (the "Registrant") has filed this Registration
Statement to register under the Securities Act of 1933, as amended (the
"Securities Act"), the offer and sale of 433,125 shares of common stock of the
Registrant, par value $0.001 per share (the "Common Stock"). All 433,125 shares
registered hereunder (the "Carryover Shares") were previously registered under
Registration Statement 333-127803, as filed with the Securities and Exchange
Commission (the "Commission") on August 24, 2005 (the "Prior Registration
Statement"), for offer or sale under the Registrant's 1998 Incentive Plan (the
"Prior Plan").
In March 2009, the Board of Directors approved, subject to stockholder
approval, the 2009 Plan. Effective June 18, 2009, the 2009 Plan was approved by
the stockholders at the Registrant's annual meeting of stockholders. The
Registrant desires to have the Carryover Shares, which were previously
registered under the Prior Registration Statement for offer or sale under the
Prior Plan, registered under this Registration Statement for offer and sale
under the 2009 Plan. The Carryover Shares are no longer available for new awards
under the Prior Plan, which expired in June 2008. A post-effective amendment to
the Prior Registration Statement to deregister the Carryover Shares is being
filed contemporaneously with the filing of this Registration Statement.
Consequently, in accordance with Interpretation 89 under Section G of the
Commission's Division of Corporate Finance Manual of Publicly Available
Telephone Interpretations (July 1997) and Instruction E to the General
Instructions to Form S-8: (a) the Registrant is carrying over the Carryover
Shares from the Prior Registration Statement, which may be offered and sold
under the 2009 Plan pursuant to this Registration Statement; and (b) the
Registrant is carrying over the registration fee allocable to the Carryover
Shares paid by the Registrant in connection with the Prior Registration
Statement for application to this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information required by Part I of Form S-8
will be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act. Such documents need not be filed with the Commission, either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
ENGlobal Corporation (the "Registrant") hereby incorporates by reference in
this Registration Statement the following documents previously filed by the
Registrant with the Securities and Exchange Commission (the "Commission"):
(1) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2008;
(2) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2009;
(3) the Company's Current Reports on Form 8-K filed with the
Commission on February 12, March 17, March 19, May 8, May 12, and June 25,
2009, August 10, 2009; and
(4) the Registrant's Form 10-SB Registration Statement filed with the
Commission on January 27, 1997, including any amendment or report filed for
the purpose of updating such description, in which there is described the
terms, rights and provisions applicable to the Registrant's Common Stock.
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All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), subsequent to the date of this Registration Statement
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of the filing of such documents until such time as there shall
have been filed a post-effective amendment that 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 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 General Corporation Law ("GCL"). 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 Nevada GCL.
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 Nevada GCL, to the fullest extent permitted by the Nevada GCL.
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 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,
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 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.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Index to Exhibits.
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:
(i) To include any prospectus required by section 10(a)(3) of the
1933 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 1934 Act that are
incorporated by reference in the Registration Statement.
(2) that, for the purpose of determining any liability under the 1933
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 liability under the Securities Act, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the 1934 Act) that is incorporated by reference in
this 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), 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 August 11, 2009.
ENGLOBAL CORPORATION
By: /s/ William A. Coskey
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William A. Coskey, P.E.
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears on the following signature page
constitutes and appoints William A. Coskey, as his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto, and all
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent, 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 attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
Signature Capacity Date
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/s/ William A. Coskey Chief Executive Officer and August 11, 2009
--------------------------- Chairman of the Board
William A. Coskey, P.E.
/s/ Robert W. Raiford Chief Financial Officer, August 11, 2009
--------------------------- Treasurer
Robert W. Raiford
/s/ David W. Gent Director August 11, 2009
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David W. Gent, P.E.
/s/ Randall B. Hale Director August 11, 2009
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Randall B. Hale
/s/ David C. Roussel Director August 11, 2009
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David C. Roussel
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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4.1 Registrant's specimen common stock certificate (incorporated by reference
to Exhibit 4.1 to the Registration Statement on Form S-3 effective
October 31, 2005 (File No. 333-129336))
4.2 Registration Rights Agreement by and among Registrant and Certain
Investors named therein dated September 29, 2005 (incorporated by
reference to Exhibit 4.2 to the Registration Statement on Form S-3
effective October 31, 2005 (File No. 333-129336))
4.3 Securities Purchase Agreement by and between Tontine Capital Partners,
L.P. and Registrant dated September 29, 2005 (incorporated by reference
to Exhibit 4.5 to the Registration Statement on Form S-3 effective
October 31, 2005 (File No. 333-129336))
4.4 Form of Subscription Agreement by and among Registrant, Michael L.
Burrow, Alliance 2000, Ltd. and certain subscribers (incorporated by
reference to Exhibit 4.6 to the Registration Statement on Form S-3
effective October 31, 2005 (File No. 333-129336))
4.5 Restated Articles of Incorporation of the Registrant dated August 8, 2002
(incorporated by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q filed with the Commission on November 14, 2002 (File
No. 001-14217))
4.6 Amendment to the Restated Articles of Incorporation of the Registrant
filed with the Nevada Secretary of State on June 2, 2006 (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form 8-A12B
effective December 17, 2007 (File No. 001-14217))
4.7 Amended and Restated Bylaws of Registrant dated November 6, 2007
(incorporated by reference to Exhibit 3.3 to the Annual Report on Form
10-K filed with the Commission on March 28, 2008 (File No. 001-14217))
4.8 Amendment to Amended and Restated Bylaws of Registrant dated April 29,
2008 (incorporated by reference to Exhibit 3.2 to the Quarterly Report on
Form 10-Q filed with the Commission on May 7, 2008 (File No. 001-14217))
5.1 Opinion of Holland & Hart LLP
23.1 Consent of Holland & Hart LLP (included in the opinion filed as Exhibit
5.1 hereto)
23.2 Consent of Hein & Associates, LLP
24.1 Power of Attorney (included on the signature page to this Registration
Statement)
99.1 Registrant's 2009 Equity Incentive Plan (incorporated by reference to
Appendix A to the Registrant's Definitive Proxy Statement filed with the
Commission on April 30, 2009 (File No. 001-14217))