As filed with the Securities and Exchange Commission on March 16, 1999
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GIBBS CONSTRUCTION, INC.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
Texas 75-2095676
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1855 Wall Street, Garland, TX 75041
(Address of principal executive office) (Zip Code)
Consultants Option Plan
(Full Title of Plan)
ROBERT A. FORRESTER, ESQ.
1215 EXECUTIVE DRIVE WEST,
SUITE 102
RICHARDSON, TEXAS 75081
(Name and address of agent for service)
(972-437-9898) Fax (972-480-8406)
(Telephone number, including area code, for agent for service)
As filed with the Securities and Exchange Commission on March 16, 1999
<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GIBBS CONSTRUCTION, INC.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
Texas 75-2095676
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1855 Wall Street, Garland, TX 75041
(Address of principal executive office) (Zip Code)
Consultants Option Plan
(Full Title of Plan)
Danny R. Gibbs
Gibbs Construction, Inc.
1855 Wall Street
Garland, TX 75041
(972) 278-3433
(Name, address and telephone number of agent for service)
Copies to:
Robert A. Forrester, Esq.
1215 Executive Drive West,
Suite 102
Richardson, Texas 75081
Phone: (972) 437-9898 Fax: (972) 480-8406
CALCULATION OF REGISTRATION FEE
<PAGE>
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Per Aggregate Amount of
to be registered Registered Security Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock 30,000 $1.65625(1) 49,687.50 $278.00
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(k) under the Securities Act of 1933,
as amended, upon the average of the closing bid and ask prices of the
Common Stock as reported on the Nasdaq Small Cap Market on March 15,
1999.
<PAGE>
PROSPECTUS
30,000 SHARES
Gibbs Construction, Inc.
Common Stock
TO BE ISSUED TO STOCK BROKERS ASSOCIATES, INC.
This Prospectus is part of a registration statement.
This Prospectus relates to an aggregate of 30,000 shares (the "Shares")
of Common Stock, par value $0.01 per share (the "Common Stock"), of Gibbs
Construction, Inc. (the "Company"), which may be offered from time to time by
Stock Broker Associates, Inc., which has provided public relations services to
the Company, and has purchased the Shares upon the exercise of the Company's
stock option or for the account for their respective pledges, donees, trustees,
legatees, heirs or legal representatives (all of such persons being referred to
hereinafter as "Selling Shareholders"). The Shares are being registered under
the Securities Act of 1933, as amended (the "Securities Act") on behalf of the
Selling Shareholders to permit the public or other distribution of the Shares.
The Shares may be sold or distributed through underwriters, dealers,
brokers or other agents, or directly to one or more purchasers, at market prices
prevailing at the time of sale or otherwise negotiated. The Company will receive
no portion of the proceeds from the sale of the Shares and will bear certain
expenses incident to their registration. See "Selling Shareholders" and "Plan of
Distribution."
On March 15, 1999, the average of the closing bid and ask price was
$1.65625.
The prospectus also covers such additional shares as may be issuable to
the Selling Shareholders in the event of a stock dividend, stock split,
recapitalization or other similar change in the Common Stock.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OF ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENCE.
The date of this Prospectus is March 16, 1999.
<PAGE>
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in or
incorporated by reference in this Prospectus in connection with the offer made
by this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or the Selling
Shareholders. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
not been any change in the information set forth in this Prospectus or in the
affairs of the Company since the date hereof or the dates as of which
information is set forth herein. This Prospectus does not constitute an offer or
solicitation by anyone in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such offer or solicitation is
not qualified to do so or to anyone to whom it is unlawful to make such offer or
solicitation.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Reports and other information filed
by the Company with the Commission pursuant to the informational requirements of
the Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following Regional Offices of the Commission: New York Regional
Office, 7 World Trade Center, Suite 1300, New York, New York 10048; and Chicago
Regional Office, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W.,Washington, D.C. 20549, at
prescribed rates. The Commission also maintains a site on the World Wide Web at
http./www.sec.gov. that contains reports and other information regarding
registrants that file electronically with the Commission. The Common Stock is
traded on the Nasdaq Small-Cap Market.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company is subject to the informational and reporting requirements
of the Exchange Act, and in accordance therewith files reports and other
information with the Commission. The following documents, which are filed with
the Commission, are incorporated in this Prospectus by reference:
(1) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act, that contains audited financial statements for
the Company's latest fiscal year for which such statements have been filed; and
(2) The description of the Common Stock contained in the Registration
Statement on Form 8-A of the Company filed under Section 12(b) of the Exchange
Act, including all amendments and reports updating such description.
(3) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold and/or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document or information incorporated or deemed to be incorporated
by reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document that also is, or is deemed to be, incorporated
herein by reference, 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 Prospectus.
The making of a modified or superseding statement shall not be deemed
to be an admission that the modified or superseded state a material fact that is
required to be stated or that is necessary to make a statement not misleading in
light of the circumstances in which it was made.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the request of such
person, a copy of any or all of the documents incorporated herein by reference,
other than exhibits to such documents. Requests should be addressed to:
President, Gibbs Construction, Inc., 1855 Wall Street, Garland, TX 75042. The
telephone number at such address is (972) 278-3433.
<PAGE>
THE COMPANY
Gibbs Construction, Inc. (the "Company"), is the issuer of the Shares of Common
Stock, $.0.01 par value per share, covered by this Prospectus. The principal
executive offices of the Company are located at 1855 Wall Street, Garland, TX
75042, and its telephone number is (972) 278-3433.
.
SELLING SHAREHOLDERS
Stockbrokers Associates, Inc. is or was a consultant to the Company
providing public relations consulting work. Such Shareholders acquired the
shares of the Company's Common Stock being offered hereunder pursuant to certain
of the Company's stock option plans. (See "Description Of Common Stock".)
Although Stockbrokers Associates, Inc. is eligible to sell Shares under this
Prospectus, Stockbrokers Associates, Inc. does not necessarily have any present
intention to sell all or a part of its Shares. The Company will not receive any
proceeds from the sale of the Shares. A total of 30,000 shares is available for
sale under this Prospectus and following completion of this offering will own
approximately 0.7%, based on 4,030,000 shares outstanding, after the completion
of this offering. This assumes that there are 4,030,000 shares of Common Stock
prior to the offering.
Sales under this Prospectus may also be made by certain unnamed persons
who are employees of, but not directors, officers or controlling persons of, the
Company who hold the lesser of (1) 1,000 shares of Non-Voting Common Stock or
(2) 1% of the shares of Common Stock issuable under any of the Company's stock
option plans covering Shares to be offered under this Prospectus (the "De
Minimus Amount"). The amount of Shares that may be sold by each of such unnamed
persons under this Prospectus may not exceed the De Minimis Amount.
PLAN OF DISTRIBUTION
The Shares may be offered and sold from time to time by or for the
account of the Selling Shareholders or their respective pledgees, donees,
trustees, legatees, heirs, distributees or legal representatives. Such persons
will act independently of the Company in making decisions with respect to the
timing, manner and size of each sale. Such persons may from time to time offer
the Shares through underwriters, dealers or agents. The distribution of the
Shares by such persons may be effected from time to time in one or more
transactions that may take place on the Nasdaq small Cap Market or in the
over-the-counter market, including ordinary broker's transactions,
privately-negotiated transactions or through sales to one or more broker-dealers
for resale of such securities as principals, at market prices prevailing at the
time of sale, at prices related to such market prices or at negotiated prices.
Usual and customary or specifically negotiated brokerage fees or commissions may
be paid by the Selling Shareholder in connection with such sales.
The Company has been advised by the Selling Shareholders that they have
not, as of the date hereof, entered into any arrangement with a broker-dealer
for the sale of Shares through a block trade, special offering, exchange
distribution or secondary distribution of a purchase by a broker-dealer. In
effecting sales, broker-dealers engaged by the Selling Shareholders may arrange
for other broker-dealers to participate. Broker-dealers may receive commissions
or discounts from the Selling Shareholder in amounts to be negotiated
immediately prior to the sale.
In offering the Shares, the Selling Shareholders and any broker-dealers
and any other participating broker-dealers who execute sales for the Selling
Shareholders may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales, and any profits realized by the
Selling Shareholders and the compensation of such broker-dealers may be deemed
to be underwriting discounts and commissions. In addition, any Shares covered by
this Prospectus which qualify for sale pursuant to Rule 144 under the Securities
Act may be sold under Rule 144 rather than pursuant to this Prospectus.
The Selling Shareholders have advised the Company that during such time
as they may be engaged in a distribution of the Shares they will comply with
Rules 10b-2, 10b-6 and 10b-7 under the Exchange Act (as those Rules are
described in more detail below) and, in connection therewith, the Selling
Shareholders have agreed not to engage in any stabilization activity in
connection with the Company's securities, to furnish to each broker-dealer
through which the Shares may be offered copies of this Prospectus, and not to
bid for or purchase any securities of the Company or attempt to induce any
person to purchase any of the Company's securities except as permitted under the
Exchange Act. The Selling Shareholders have also agreed to inform the Company
when the distribution of their respective Shares is completed.
<PAGE>
Rule 10b-2 under the Exchange Act prohibits persons who are participating in or
financially interested in a distribution of securities from making payments to
another person for the solicitation of a third party to purchase the securities
that are the subject of the distribution, except that Rule 10b-2 does not apply,
among other exceptions, to brokerage transactions not involving solicitation of
customer orders. Rule 10b-6 under the Exchange Act prohibits participants in a
distribution from bidding for or purchasing, for an account in which the
participant has a beneficial interest, any of the securities that are the
subject of the distribution. Rule 10b-7 governs bids and purchases made in order
to stabilize the price of a security in connection with a distribution of the
security.
The public offering of the Shares by the Selling Shareholders will
terminate on the date on which all Shares offered hereby have been sold by the
Selling Shareholders, or on such earlier date on which the Company files a
post-effective amendment which deregisters all Shares then remaining unsold.
The Company will pay certain expenses incidental to the offering and
sale of the Shares to the public estimated to be approximately $8,000. The
Company will not pay for, among other expenses, selling expenses, underwriting
discounts or fees and expenses of counsel for the Selling Shareholders.
EXPERTS
The consolidated financial statements and the related supplemental
schedules incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-K have been audited by Killman Murell & Company, P.C.,
independent public accountants, as set forth in their report included therein,
which is incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of that firm as experts in accounting and auditing.
RECENT DEVELOPMENTS
There have been no material changes in the Company's affairs since its
Annual Report on Form 10-K for the year ended December 31, 1997 which have not
been described in a Quarterly Report on Form 10-Q or a periodic report on Form
8-K. See "Incorporation of Certain Documents by Reference."
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Gibbs Construction, Inc., a Texas corporation (the "Registrant" or
the"Company"), is subject to the informational and reporting requirements of the
Securities Exchange Act of 1934 (as amended, the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission. The following documents, which are filed with the
Securities and Exchange Commission, are incorporated in the Prospectus contained
in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933 (as amended, the "Securities Act"),
that contains audited financial statements for the Registrant's latest fiscal
year for which such statements have been filed; and
(2) The description of the Common Stock contained in the registration
statement filed on Form 8-A under Section 12(b) of the Exchange Act, including
all reports updating such description.
(3) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
The class of securities to be offered under this Registration Statement
is registered under the Section 12(b) of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock to which this Registration Statement
relates has been passed on by Robert A. Forrester, Esq. As of January 15, 1999,
Mr. Forrester held a warrant to purchase 7,500 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 204 (a) (10) (A) of the General Corporation Law of the State of
California ("GCL") allows a corporation to eliminate the personal liability of a
director for monetary damages in an action brought by or in the right of the
corporation for breach of a director's duties to the corporation and its
stockholders, except that such provision may not eliminate or limit the
liability of directors for (i) acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) acts or omissions
that a director believes to be contrary to the best interests of the corporation
or its stockholders or that involve the absence of good faith on the part of the
director, (iii) any transaction from which a director derived an improper
personal benefit, (iv) acts or omissions that show a reckless disregard for the
director's duty to the corporation or its stockholders in circumstances in which
the director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the corporation
or its stockholders, (v) acts or omissions that constitute an unexcused pattern
of inattention that amounts to an abdication of the director's duty to the
corporation or its stockholders, (vi) certain liabilities arising from contracts
with the corporation in which the director has a material financial interest,
(vii) the making of any distributions to stockholders contrary to the law,
(viii) the distribution of assets to shareholders after dissolution proceedings
without paying or adequately providing for all known liabilities of the
corporation within certain time limits, and (ix) the making of any loan or
guaranty contrary to law. The Registrant's Articles of Incorporation contains a
provision which eliminates directors' personal liability as set forth above,
except, as required by Section 204 (a) (10) (B) and (C) of the GCL, any
liability of a director for any act or omission occurring prior to the date of
the provision's effectiveness, or any liability for an officer's acts or
omissions, notwithstanding that the officer is also a director or that the
officer's actions, if negligent or improper, have been ratified by the
directors.
<PAGE>
Section 317 of the GCL ("Section 317") empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
proceeding (other than an action by or in the right of the corporation to
procure a judgment in its favor) by reason of the fact that he or she is or was
a director, officer, employee or agent of the corporation, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with the proceeding if that person acted in good faith and in a
manner the person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of the person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendre or its equivalent does not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably
believed to be in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful. Section 317
empowers the corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action by
or in the right of the corporation to procure a judgment in its favor by reason
of the fact that the person is or was a director, officer, employee or agent of
the corporation, against expenses actually and reasonably incurred by that
person in connection with the defense or settlement of the action if the person
acted in good faith, in a manner the person believed to be in the best interests
of the corporation and its stockholders, provided that (i) the person is
successful on the merits or (ii) such amounts are paid with court approval.
Section 317 also provides that, unless a person is successful on the merits in
defense of any proceeding referred to above, indemnification may be made only if
authorized in the specific case, upon a determination that indemnification is
proper in the circumstances because the indemnified person met the applicable
standard of conduct described above by one of the following: (1) a majority vote
of a quorum consisting of directors who are not parties to such proceedings; (2)
if such quorum is not obtainable, by independent legal counsel in a written
opinion; (3) by approval of stockholders with such indemnified person's shares
not being entitled to vote thereon; or (4) by the court in which the proceeding
is or was pending upon application by or on behalf of the person. Such
indemnification may be advanced to the indemnified person upon the receipt of
the corporation of an undertaking by or on behalf of the indemnified person to
repay such amount in the event it shall be ultimately determined that such
indemnified person is not entitled to indemnification. Section 317 also allows
the corporation, by express provision in its articles, to authorize additional
rights for indemnification pursuant to Section 204 (a) (ii).
The Bylaws of the Registrant provide that the Registrant shall indemnify its
directors and officers against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with any proceeding
arising by reason of such person being or having been a director or officer
expenses incurred in defending any such proceeding to the fullest extent
permissible under California law. The Bylaws also provide that the Registrant
may indemnify its employees and agents for such expenses by resolution of the
Board of Directors.
Reference is also made to the Form of Underwriting Agreement filed as Exhibit
1.1 to this Registration Statement for provisions relating to the
indemnification of directors, officers and controlling persons against certain
liabilities including liabilities under the Securities Act of 1933, as amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibits
4. Form of Option Agreement
5. Opinion of Robert A. Forrester
10. Form of Consulting Agreement with Brokers Associates, Inc.
24.1 Consent of Killman, Murrell & Co., independent accountants
24.2 Consent of Robert A. Forrester
<PAGE>
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) 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 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 (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(b) 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.
(c) 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.
2. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where
applicable, each filing of an 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 therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide offering thereof.
3. 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 Securities and Exchange
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 of 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.
<PAGE>
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 Garland, State of Texas, on this 20th day of January,
1999.
Gibbs Construction, Inc.
/s/Danny Gibbs
- ---------------------------------
Danny Gibbs, President
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 dates indicated.
/s/Danny R. Gibbs Director, Principal January 20, 1999
- --------------------------- Financial Accounting
Danny R. Gibbs Officer
/s/Tony G. Gibbs Director January 20, 1999
- ---------------------------
Tony G. Gibbs
Director January 20, 1999
- ---------------------------
Dennis T. Mitchell
Director January 20, 1999
- ---------------------------
L. W. Reynolds
<PAGE>
GIBBS CONSTRUCTION, INC.
NONQUALIFIED STOCK OPTION LETTER AGREEMENT
FOR NONEMPLOYEES
Dear Stock Broker Associates, Inc.:
On January 14, 1999 the Board of Directors of Gibbs Construction, Inc.
(the "Company") granted you a stock option for the purchase of 30,000 shares of
the Common Stock of he Company at an exercise price of $1.6875 per share. In the
event the Company splits its Common Stock or declares a stock dividend, the
number of shares that can be exercised pursuant to this agreement and the
exercise price shall be adjusted accordingly.
The grant of the option described in this Agreement is made pursuant to
the terms and conditions of this Agreement.
The terms of this option are summarized as follows:
TERM: The term of this option is ten years from date of grant ("Grant
Date"), unless sooner terminated as provided below.
VESTING: This option will vest and become immediately exercisable upon
the Grant Date.
EXERCISE: During your lifetime only you can exercise this option,
except that the option may be exercised by the personal representative of your
estate or the beneficiary thereof following your death. You may use the Notice
of Exercise of Stock Option in the form attached to this Agreement when you
exercise this option.
TERMINATION: The option will terminate one year after termination of
your relationship with the Company as a result of disability or death, but in
each case not later than the remaining term of this option. Any portion of the
option that is not exercisable at the time of cessation of your relationship
with the Company will terminate at such time.
PAYMENT FOR SHARES: This option may be exercised by the delivery of one
or more of the following:
(a) Cash or check; and/or
(b) Tendering (either actually or, if and so long as the Common
Stock is registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), by attestation) shares of the Common Stock of the
Company having a fair market value (as of the date of receipt
of such shares by the Company) equal to the purchase price for
the number of shares of Common Stock purchased. (You should
consult your tax advisor before exercising this option with
stock you received upon the exercise of an incentive stock
option.)
CONTINUATION IN SAME STATUS: Nothing contained in this Agreement or in any
action taken pursuant to this Agreement will be construed as creating or
constituting evidence of any agreement or understanding, express or implied,
that you will have any right to continue in any capacity with of the Company or
in any other capacity for any period of time or at a particular retainer or
other rate of compensation.
<PAGE>
TRANSFER OF OPTION: This option is not transferable except by will or
by the applicable laws of descent and distribution.
NO STATUS AS SHAREHOLDER: Neither you nor any party to whom your rights
and privileges under the option pass will be, or have any of the rights or
privileges of, a shareholder of the Company with respect to any of the shares
issuable upon the exercise of this option unless and until this option has been
exercised.
HOLDING PERIODS:
A. SECURITIES EXCHANGE ACT SECTION 16
If an individual subject to Section 16 of the Exchange Act sells shares
of Common Stock obtained upon the exercise of a stock option within six months
after the date this option was granted, such sale may result in short-swing
profit recovery under Section 16(b) of the Exchange Act.
B. TAXATION
You should obtain tax advice when exercising any option and prior to
the disposition of the shares issued upon the exercise of any option.
REGISTRATION: AT THE PRESENT TIME, THE COMPANY INTENDS TO FILE AND
MAINTAIN AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT TO THE SHARES THAT
WILL BE ISSUED UPON THE EXERCISE OF THIS OPTION. THE COMPANY INTENDS TO MAINTAIN
THIS REGISTRATION BUT HAS NO OBLIGATION TO DO SO. IN THE EVENT THAT SUCH
REGISTRATION IS NO LONGER EFFECTIVE, YOU WILL NOT BE ABLE TO EXERCISE THIS
OPTION UNLESS EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES
LAWS ARE AVAILABLE; SUCH EXEMPTIONS FROM REGISTRATION ARE VERY LIMITED AND MIGHT
BE UNAVAILABLE.
Please execute the Acceptance and Acknowledgment set forth below on the
enclosed copy of this Agreement and return it to the undersigned.
Very truly yours,
Gibbs Construction, Inc.
By: _________________
Danny R. Gibbs
Its: President
<PAGE>
ACCEPTANCE AND ACKNOWLEDGMENT
I, a resident of the State of _________________, accept the stock
option described above and acknowledge receipt of a copy of this Agreement and
the Plan. I have read and understood the Agreement.
Dated: _______________ ____________________________
(Name)
Address _____________________
______________________ _____________________________
Taxpayer I.D. Number _____________________________
By his or her signature below, the spouse of the Optionee, if such
Optionee is legally married as of the date of his or her execution of this
Agreement, acknowledges that he or she has read this Agreement and is familiar
with the terms and provisions thereof, and agrees to be bound by all the terms
and conditions of this Agreement.
Dated: _________________ _____________________________
Spouse's Signature
_____________________________
Printed Name
By his or her signature below, the Optionee represents that he or she
is not legally married as of the date of execution
Dated: _______________ ____________________________
(Name)
Address _____________________
____________________ _____________________________
Taxpayer I.D. Number _____________________________
<PAGE>
RECEIPT
__________________________ hereby acknowledges receipt from
_________________ in payment for _____ shares of Common Stock of Gibbs
Construction, Inc., a Texas corporation, of $____________ in the form of
[_] Cash
[_] Check (personal, cashier's or bank certified)
[_] ________ shares of the Company's Common Stock, fair market
value $_____ per share.
Date: _____________ By: ____________________
FMV on such date: $__________ For: Gibbs Construction, Inc.
<PAGE>
NOTICE OF EXERCISE OF STOCK OPTION
Gibbs Construction, Inc.
I, a resident of the State of _________________, hereby exercise my
stock option granted by the Board of Directors of Gibbs Construction, Inc. (the
"Company") on January 14, 1999, subject to all the terms and provisions of the
Stock Option Letter Agreement and notify the Company of my desire to purchase
_____ shares of Common Stock of the Company (the "Securities") at the exercise
price of $1.6875 per share which were offered to me pursuant to said option.
I hereby represent and warrant that (1) I have been furnished with a
copy of the plan and al information which I deem necessary to evaluate the
merits and risks of the purchase of the Securities; (2) I have had the
opportunity to ask questions and receive answers concerning the information
received about the Securities and the Company; and (3) I have been given the
opportunity to obtain information obtained concerning the Securities and
Company.
Dated: __________________ ______________________________
Optionee's Signature
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation of our report dated February 27,
1998, which is incorporated in this Form S-8 dated on or around March 15, 1999,
of Gibbs Construction, Inc. by virtue of the incorporation therein of the Annual
Report on Form 10-K for the year ended December 31, 1997. We further consent to
the designation with said Form S-8 of us as Experts.
/s/ Killman, Murrell & Company, P.C.
- ------------------------------------
Killman, Murrell & Company, P.C.
March 15, 1999
<PAGE>
Robert A. Forrester
Attorney at Law
1215 Executive Drive West, Suite 102
Richardson, TX 75081
(972) 437-9898
Fax (972) 480-8406
March 15, 1999
Gibbs Construction, Inc.
1855 Wall St.
Garland, Texas 75041
Gentlemen:
I have acted as counsel to Gibbs Construction, Inc., a Texas corporation (the
"Corporation"), in connection with the offering of 30,000 shares of the
Corporation's Common Stock, par value $0.01 per share (the "Common Stock").
I have participated in the preparation of the Registration Statement covering
the offering of Common Stock (the "Registration Statement") dated on or around
March 15, 1999, in connection with which this opinion is rendered. As to various
questions of fact material to my opinion, I have examined such certificates of
corporate or public officials, corporate documents and records and other
certificates, opinions and instruments and have made such other investigations
as I have deemed necessary in connection with the opinions hereinafter set
forth.
Based upon the foregoing and upon such investigation as I have deemed necessary,
I give you my opinion as follows:
1. The Corporation is duly organized and validly existing under
the laws of the State of Texas.
2. The Corporation has 15,000,000 authorized shares of Common
Stock of which 4,000,000 are outstanding. Said 4,000,000
shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable.
3. When the Registration Statement shall have been declared
effective by order of the Securities and Exchange Commission
and the Common Stock has been issued and sold upon the terms
and conditions set forth in the Registration Statement, then
the Common Stock, will be validly authorized and legally
issued, fully paid and nonassessable.
I hereby consent (1) to be named in the Registration Statement or Statements,
and in the prospectus which constitutes a part thereof, as the attorney who will
pass upon legal matters in connection with the sale of the Common Stock, and (2)
the filing of this opinion as Exhibit 5 to any related Registration Statement.
Very truly yours,
Robert A. Forrester
RAF/sw
<PAGE>
