As filed with the Securities and Exchange Commission on August 24, 2005
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 77060-5914
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(Address of principal executive offices) (Zip Code)
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1998 INCENTIVE PLAN
and
ENGLOBAL CORPORATION (f/k/a INDUSTRIAL DATA SYSTEMS CORPORATION)
STOCK OPTION AGREEMENT
(Full title of the plan)
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Natalie S. Hairston Copy to:
Investor Relations Officer and Chief Governance Officer Kathryn K. Lindauer, Esq.
ENGlobal Corporation Jenkens & Gilchrist,
654 N. Sam Houston Parkway E., Suite 400 A Professional Corporation
Houston, Texas 77060-5914 401 Congress Avenue, Suite 2500
(281) 878-1000 Austin, Texas 78701
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered(1)(2) per Share(3) Offering Price(3) Fee
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Common Stock, $.001 par value per share 684,774 shares $4.26 - $6.80 $4,060,137.20 $477.88
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(1) The 1998 Incentive Plan, as amended March 24, 2005 (the "Plan"), authorizes
the issuance of a maximum 2,650,000 shares ENGlobal Common Stock, par value
$.001 per share ("Common Stock"), 450,000 of which are being newly
registered hereunder. The ENGlobal Corporation (f/k/a Industrial Data
Systems Corporation) Stock Option Agreement for Dana Swindler (the
"Swindler Agreement") provides for the issuance of 234,774 shares of Common
Stock pursuant to the exercise of presently outstanding options.
(2) Pursuant to Rule 416, this Registration Statement is deemed to include
additional shares of Common Stock issuable under the terms of the Plan to
prevent dilution resulting from any further stock split, stock dividend or
similar transaction.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended. The Proposed Maximum Aggregate Offering Price is the sum of (i)
the product of the 450,000 additional options included under the Plan as a
result of the March 24, 2005 amendment and the average of the high and low
sales prices of the Common Stock as reported on the American Stock Exchange
on August 18, 2005, and (ii) the product of the number of options
outstanding under the Swindler Agreement (234,774) and the exercise price
for such options ($4.26).
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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 the Registration Statement in accordance with
Rule 428 of the Securities Act of 1933, as amended (the "1933 Act"), and
the Note to Part I of Form S-8.
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 fiscal year
ended December 31, 2004;
(2) the Registrant's quarterly reports on Form 10-Q for the quarters
ended March 31 and June 30, 2005;
(3) the Registrant's Current Reports on Form 8-K dated January 31,
March 31, and August 12, 2005; 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.
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.
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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
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 Registrant's shareholders, 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.
In addition, 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.
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.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
See Index to Exhibits on page 6.
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 periodic reports filed 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 any liability under the Securities Act of 1933, 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 the registration statement 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.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the 1933 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 1933 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 17, 2005:
ENGLOBAL CORPORATION
By: /s/ William A. Coskey, P.E.
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William A. Coskey, P.E.,
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears on the following signature page
constitutes and appoints Michael L. Burrow and William A. Coskey, or either of
them, 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, P.E. Chairman of the Board August 17, 2005
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William A. Coskey, P.E.
/s/ Michael L. Burrow, P.E. Director, President and Chief August 17, 2005
-------------------------- Executive Officer
Michael L. Burrow, P.E.
/s/ Robert W. Raiford Chief Financial Officer and August 17, 2005
-------------------------- Treasurer
Robert W. Raiford
/s/ David W. Gent Director August 17, 2005
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David W. Gent, P.E.
/s/ Randall B. Hale Director August 17, 2005
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Randall B. Hale
/s/ David C. Roussel Director August 17, 2005
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David C. Roussel
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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5.1 Opinion of Jenkens & Gilchrist, A Professional Corporation
10.49 1998 Incentive Plan
10.50 Amendment Dated December 20, 2001 Increasing the Number of Shares
Under the 1998 Incentive Plan (Incorporated by reference to
Exhibit 10.65-A to the Registrant's Registration Statement
(Registration No. 333 - 105966) on Form S-8)
10.51 Amendment Dated June 5, 2003 Increasing the Number of Shares
Under the 1998 Incentive Plan (Incorporated by reference to
Exhibit 10.65-B to the Registrant's Registration Statement
(Registration No. 333 - 105966) on Form S-8)
10.52 Amendment Dated March 24, 2005 Increasing the Number of Shares
Under the 1998 Incentive Plan
10.80 Form of ENGlobal Corporation (f/k/a Industrial Data Systems
Corporation) Non-qualified Stock Option Agreement Granted Outside
of 1998 Incentive Plan
23.1 Consent of Jenkens & Gilchrist, A Professional Corporation
(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)
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