As filed with the Securities and Exchange Commission on March 11, 2003
Registration No. 333-97577
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CPI AEROSTRUCTURES, INC.
(Exact Name of Registrant as Specified in Its Charter)
New York 11-2520310
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
200A Executive Drive
Edgewood, New York 11717
(Address of Principal Executive Offices, including Zip Code)
1998 PERFORMANCE EQUITY PLAN
PERFORMANCE EQUITY PLAN 2000
(Full Title of the Plans)
ARTHUR AUGUST
Chairman of the Board
CPI Aerostructures, Inc.
200A Executive Drive
Edgewood, New York 11717
(631) 586-5200
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
with a copy to:
DAVID ALAN MILLER, Esq.
Graubard Miller
600 Third Avenue
New York, New York 10016-2097
(212) 818-8800
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by us with the SEC are
incorporated by reference in this Registration Statement:
o Annual Report on Form 10-KSB for the fiscal year ended December 31,
2001, filed with the SEC pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended ("Exchange Act");
o Quarterly Report on Form 10-QSB for the quarter ended March 31, 2002,
filed with the SEC pursuant to Section 13(a) of the Exchange Act;
o Quarterly Report on Form 10-QSB for the quarter ended June 30, 2002,
filed with the SEC pursuant to Section 13(a) of the Exchange Act;
o Quarterly Report on Form 10-QSB for the quarter ended September 30,
2002, filed with the SEC pursuant to Section 13(a) of the Exchange
Act;
o Current Report on Form 8-K, dated February 21, 2002, filed with the
SEC on March 1, 2002, as amended by Form 8-K/A filed with the SEC on
March 18, 2002;
o Current Report on Form 8-K, dated June 25, 2002, filed with the SEC on
June 27, 2002; and
o The description of the Common Stock contained in Registrant's Form 8-A
(File No. 1-11398), filed pursuant to Section 12(b) of the Exchange
Act, including any amendment(s) or report(s) filed for the purpose of
updating such description.
In addition, all documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, is deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the respective date of filing of such documents. Any statement contained in
a document incorporated by reference in this Registration Statement is modified
or superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document that is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
Our common stock is registered under Section 12(b) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 721 through 726, inclusive, of the Business Corporation Law of New
York ("BCL") authorizes New York corporations to indemnify their officers and
directors under certain circumstances against expenses and liabilities incurred
in legal proceedings involving such persons because of their being or having
been officers or directors and to purchase and maintain insurance for
indemnification of such officers and directors. Section 402(b) of the BCL
permits a corporation, by so providing in its certificate of incorporation, to
eliminate or limit directors' personal liability to the corporation or its
shareholders for damages arising out of certain alleged breaches of their duties
as directors. The BCL, however, provides that no such limitation of liability
may affect a director's liability with respect to any of the following: (1) acts
or omissions made in bad faith or which involved intentional misconduct or a
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knowing violation of law; (2) any transaction from which the director derived a
financial profit or other advantage to which he was not legally entitled; (3)
the declaration of dividends or other distributions or purchase or redemption of
shares in violation of the BCL; or (4) the distribution of assets to
shareholders after dissolution of the corporation without paying or adequately
providing for all known liabilities of the corporation or making loans to
directors in violation of the BCL.
The Registrant's Certificate of Incorporation, as amended, provides that
the personal liability of the directors of the Registrant is eliminated to the
fullest extent permitted by Section 402(b) of the BCL. In addition, the Amended
and Restated By-laws of the Registrant provide in substance that, each director
and officer shall be indemnified by the Registrant against reasonable expenses,
including attorney's fees, and any liabilities that he or she may incur in
connection with any action to which he or she may be made a party by reason of
his or her being or having been a director or officer of the Registrant. The
indemnification provided by the Registrant's By-laws is not deemed exclusive of
or in any way to limit any other rights which any person seeking indemnification
may be entitled. The Registrant also has directors' and officers' liability
insurance.
In addition, the Registrant has entered into Indemnification Agreements
with each of its executive officers and directors which provide that the
Registrant will indemnify and advance expenses to such officer or director to
the fullest extent permitted by law and provides the procedure for entitlement
of indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
----------- -----------
4.1 1998 Performance Equity Plan (incorporated by
reference to Exhibit 10.28 to the Registrant's
Annual Report on Form 10-KSB for the year ended
December 31, 1998)*
4.2 Performance Equity Plan 2000 (incorporated by
reference to Exhibit 10.29 to the Registrant's
Annual Report on Form 10-KSB for the year ended
December 31, 2000)*
5.1 Opinion of Graubard Miller**
23.1 Consent of Goldstein Golub Kessler & Company,
P.C.*
23.2 Consent of Graubard Miller (included in Exhibit
5.1)**
24.1 Powers of Attorney (included on the signature
page to this Registration Statement)**
* Filed Herewith
** Previously Filed
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities,
a post-effective amendment to this registration statement to include any
additional or changed material information on the plan of distribution.
(2) That, for the purpose of determining liability under the
Securities Act, each 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.
(3) To file a post-effective amendment to remove from registration any
of the securities being registered which remain unsold at the end of the
offering.
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Pursuant to the above undertaking, the Registrant includes in the
submission of this Post Effective Amendment Number 1, to its Registration
Statement on Form S-8, Registration Number 333- 97577, its removal from
registration of 20,000 shares of Common Stock Common Stock issuable upon
exercise of options granted and outstanding under other employee benefit plans.
The Registrant had registered 1,313,334 shares of common stock on the
Registration Statement. As of the date of this Post Effective Amendment No. 1,
the Registrant sold 31,000 shares of common stock.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
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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 Edgewood, State of New York, on this 11th day of
March, 2003.
CPI AEROSTRUCTURES, INC.
By /s/ Edward J. Fred
----------------------
Edward J. Fred
Chief Executive Officer, President, acting
Chief Financial Officer, Secretary
(Principal Executive, Financial and
Accounting Officer) and Director
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.
/s/ Edward J. Fred Chief Executive Officer, President, March 11, 2003
---------------------- acting Chief Financial Officer
Edward J. Fred and Director
* Chairman of the Board and Director March 11, 2003
----------------------
Arthur August
* Director March 11, 2003
----------------------
Walter Paulick
* Director March 11, 2003
----------------------
Kenneth McSweeney
/s/ A. C. Providenti Director March 11, 2003
----------------------
A. C. Providenti
* By: /s/ Edward J. Fred
------------------
Edward J. Fred,
as Attorney in Fact
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 1998 Performance Equity Plan (incorporated by reference to
Exhibit 10.28 to the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 1998)*
4.2 Performance Equity Plan 2000 (incorporated by reference to
Exhibit 10.29 to the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 2000)*
5.1 Opinion of Graubard Miller**
23.1 Consent of Goldstein Golub Kessler & Company, P.C.*
23.2 Consent of Graubard Miller (included in Exhibit 5.1)**
24.1 Powers of Attorney (included on the signature page to this
Registration Statement)**
* Filed Herewith
** Previously Filed