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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HAGLER BAILLY, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
54-1759180
(I.R.S. Employer Identification No.)
1530 Wilson Boulevard
Arlington, VA 22209-2406
(703) 351-0300
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Hagler Bailly, Inc. Employee Incentive and Non-Qualified Stock
Option and Restricted Stock Plan
(Full title of the Plan)
Stephen V. R. Whitman
Vice President and General Counsel
Hagler Bailly, Inc.
1530 Wilson Boulevard
Arlington, VA 22209-2406
(703) 351-0300
(Name, address and telephone number, including area code, of agent for service)
Copy to:
David B.H. Martin, Jr., Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------ ---------------- --------------------- --------------------- -------------
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered Registered per share (1) price (1) fee (1)
- ------------------------------------------ ---------------- --------------------- --------------------- -------------
<S> <C> <C> <C> <C>
Common Stock 2,573,679 $10.00 $13,986,690.00 $13,300.21
$24.4668 $31,098,754.668
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- ------------------------------------------ ---------------- --------------------- --------------------- -------------
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of calculating
the amount of registration fee. The proposed maximum offering price per share
was determined by calculating the weighted average exercise price of (i)
1,398,669 shares of Common Stock being offered under outstanding options at an
exercise price of $10.00 and (ii) 1,175,010 shares of Common Stock being offered
at an exercise price of $26.4668 based on the average of the high and low prices
per share of the Common Stock on June 8, 1998, as reported on The Nasdaq
National Market.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
will be sent or given to participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will 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 under the Securities Act. These documents and the documents
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute the prospectus as required by Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Hagler Bailly, Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents filed by it with the
Commission:
(a) The Registrant's final prospectus dated July 3, 1997
as filed with the Commission pursuant to Rule 424(b)
under the Securities Act, which contains audited
financial statements for the fiscal year ended
December 31, 1996;
(b) All reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), since
December 31, 1996; and
(c) The description of the Registrant's Common Stock
("Common Stock"), contained in the Registrant's
registration statement on Form 8-A filed with the
Commission under the Exchange Act on June 25, 1997.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Exchange Act, and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities 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 or reports. 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 other subsequent filed document which also
is or is deemed to be incorporated by reference herein 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 (the Common Stock is registered under Section 12 of the Exchange
Act).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law
("DGCL"), a corporation may indemnify its directors, officers, employees and
agents and its former directors, officers, employees and agents and those who
serve, at the corporation's request, in such capacities with another enterprise,
against expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or threatened to be made parties by reason
of their serving or having served in such capacity. The DGCL provides, however,
that such person must have acted in good faith and in a manner such person
reasonably believed to be in (or not opposed to) the best interests of the
corporation and, in the case of a criminal action, such person must have had no
reasonable cause to believe his or her conduct was unlawful. In addition, the
DGCL does not permit indemnification in any action or suit by or in the right of
the corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for costs the court deems proper in
light of liability adjudication. Indemnity is mandatory to the extent a claim,
issue or matter has been successfully defended.
As permitted by the Delaware General Corporation Law, the
Company's Amended and Restated Certificate of Incorporation provides that
directors of the Company shall not be personally liable for monetary damages to
the Company for certain breaches of their fiduciary duty as directors, unless
they violated their duty of loyalty to the Company or its stockholders, acted in
bad faith, knowingly or intentionally violated the law, authorized illegal
dividends or redemptions, or derived an improper personal benefit from their
action as directors. This provision would have no effect on the availability of
equitable remedies or nonmonetary relief, such as an injunction or rescission
for breach of the duty of care. In addition, the provision applies only to
claims against a director arising out of his or her role as a director and not
in any other capacity (such as an officer or employee of the Company). Further,
liability of a director for violations of the federal securities laws will not
be limited by this provision. Directors will, however, no longer be liable for
monetary damages arising from decisions involving violations of the duty of care
that could be deemed grossly negligent. The Amended and Restated Certificate of
Incorporation also provides that directors and officers of the Company shall be
indemnified by the Company to the fullest extent authorized by Delaware law, as
it now exists or may in the future be amended, against all expenses and
liabilities reasonably incurred in connection with service for or on behalf of
the Company. The Amended and Restated Certificate of Incorporation also
authorizes the Company to enter into one or more agreements with any person that
provide for indemnification greater or different from that provided in the
Amended and Restated Certificate of Incorporation. The Company believes that
these provisions and agreements are desirable to attract and retain qualified
directors and officers.
* * *
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
therefore is unenforceable. In the event that a claim for indemnification
against such liabilities is asserted by such person in connection with the
offering of the Common Stock (other than for 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) 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 the issue.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Description
4.1 Amended and Restated Certificate of
Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to
Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 (File No.
333-22207) which was filed with the
Commission on May 21, 1997).
4.2 By-Laws of the Registrant, as amended
(incorporated by reference to Exhibit 3.2 to
Amendment No. 1 to the Registrant's
Registration Statement on Form S-1 (File No.
333-22207) which was filed with the
Commission on May 21, 1997).
4.3 Specimen Certificate representing Common
Stock of the Registrant (incorporated by
reference to Exhibit 4.1 to Amendment No. 2
to the Registrant's Registration Statement
on Form S-1 (File No. 333-22207) which was
filed with the Commission on June 11, 1997).
5.1 Opinion of Hogan & Hartson L.L.P.
regarding the legality of the sharesbeing
registered.
23.1 Consent of Hogan & Hartson L.L.P.(included
in their opinion filed as Exhibit 5.1
hereto).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Gelman, Rosenberg & Freedman.
24.1 Power of Attorney(included on signature
page).
Item 9. Undertakings.
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:
(a) To include any prospectus required by Section 10
(a)(3) of the Securities Act;
(b) 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
(c) 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 (1)(a) and (1)(b)
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 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 the
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.
(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.
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 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 the initial bona
fide offering thereof.
The undertaking concerning indemnification is set forth under the
response to Item 6.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the undersigned
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 County of Arlington, Commonwealth of Virginia, on the 8th day
of June 1998.
HAGLER BAILLY, INC.
By: /s/ Henri-Claude A. Bailly
Henri-Claude A. Bailly
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Henri-Claude A. Bailly and
Stephen V.R. Whitman, and each of them, his or her true and lawful
attorney-in-fact and agent, with power of substitution and resubstitution, for
him or her and in his or her name, place and stead, in any and all capacities,
to sign any amendments to this Registration Statement, and to file the same,
with all exhibits and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said 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 or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their, his or her substitutes or substitute, 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:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Henri-Claude A. Bailly Chairman, President and Chief Executive June 8, 1998
Henri-Claude A. Bailly Officer (Principal Executive Officer)
/s/ Daniel M. Rouse Vice President, Chief Financial Officer June 8, 1998
Daniel M. Rouse and Treasurer (Principal Financial
Officer and Principal Accounting Officer)
/s/ Robert W. Fri Director June 8, 1998
Robert W. Fri
/s/ Fred M. Schriever Director June 8, 1998
Fred M. Schriever
/s/ Richard H. O'Toole Director June 8, 1998
Richard H. O'Toole
/s/ Alain M. Streicher Director June 8, 1998
Alain M. Streicher
/s/ Michael D. Yokell Director June 8, 1998
Michael D. Yokell
/s/ Vinod K. Dar Director June 8, 1998
Vinod K. Dar
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated *
by reference to Exhibit 3.1 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-22207) which was filed with the Commission on
May 21, 1997).
4.2 By-Laws of the Registrant, as amended (incorporated by reference to Exhibit 3.2 *
to Amendment No. 1 to the Registrant's Registration Statement on Form S-1 (File
No. 333-22207) which was filed with the Commission on May 21, 1997).
4.3 Specimen Certificate representing Common Stock of the Registrant (incorporated by *
reference to Exhibit 4.1 to Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (File No. 333-22207) which was filed with the Commission on
June 11, 1997).
5.1 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Hogan & Hartson L.L.P.(See Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Gelman, Rosenberg & Freedman
24.1 Power of Attorney (included on signature page).
- ---------------
*Incorporated by reference.
</TABLE>
Exhibit 5.1
June 10, 1998
Board of Directors
Hagler Bailly, Inc.
1530 Wilson Boulevard
Arlington, Virginia 22208-2406
Dear Sirs:
This firm has acted as counsel to Hagler Bailly, Inc., a
Delaware corporation (the "Company"), in connection with its registration,
pursuant to a registration statement on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") on or about the date hereof (the
"Registration Statement"), of 2,573,679 shares (the "Shares") of common stock,
$.01 par value per share, of the Company (the "Common Stock"), issuable upon the
award of shares of Common Stock conditioned upon the attainment of specified
performance goals or other factors ("Restricted Stock") or upon the exercise of
options granted or to be granted pursuant to the Company's Employee Incentive
and Non-Qualified Stock Option and Restricted Stock Plan (the "Plan"). This
letter is furnished to you pursuant to the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. ss.229.601(b)(5), in connection with such
registration.
For purposes of this opinion letter, we have examined copies of the following
documents.
1. An executed copy of the Registration Statement.
2. The Amended and Restated Certificate of Incorporation
of the Company as certified by the Secretary of State
of the State of Delaware on June 8, 1998, and as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
3. The Bylaws of the Company, as amended, as certified
by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect (the
"Bylaws").
4. A copy of the Plan as adopted by the Board of
Directors of the Company and the stockholders of the
Company, and as certified by the Secretary of the
Company on the date hereof as then being complete,
accurate and in effect.
5. Resolutions of the Board of Directors of the Company
adopted at meetings held on December 11, 1996,
January 17, 1997 and March 11, 1997 and by unanimous
written consent on May 17, 1995, December 31, 1996
and January 27, 1998, as certified by the Secretary
of the Company on the date hereof as then being
complete, accurate and in effect, relating to, among
other things, the approval of the Plan and amendments
thereto and the filing of the Registration Statement.
6. Resolutions of the stockholders of the Company
adopted at meetings on April 26, 1996 and March 11,
1997, as certified by the Secretary of the Company on
the date hereof as then being complete, accurate and
in effect, relating to, among other things, the
approval of the Plan and amendments thereto.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of the
Company, or its subsidiaries or of any other matters. In our examination of the
aforesaid certificates, records and documents, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, and the authenticity and conformity
with the original documents of all documents submitted to us as certified,
telecopied, photostatic, or reproduced copies. We have assumed the authenticity
and accuracy of the foregoing certifications of corporate officers, on which we
are relying, and have made no independent investigations thereof.
We have not, except as specifically identified herein, been
retained or engaged to perform, nor have we performed, any independent review or
investigation of any statutes, ordinances, laws, regulations, agreements,
contracts, instruments, or corporate records to which the Company or any of its
property may be a party or may be subject. This opinion letter is given in the
context of the foregoing.
This opinion letter is based as of matters of law solely on
the applicable provisions of Delaware law, and we express no opinion as to any
other laws, statutes, rules, regulations or ordinances, including without
limitation any federal or state tax or securities laws or regulations. We note
hat our firm only requires lawyers to be qualified to practice law in the
District of Columbia, Virginia, or Maryland.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issues and delivered in the manner and on
the terms contemplated in the Registration Statement and the Plan (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion. This opinion has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this letter, and should not be quoted in whole or in
part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. Nothing herein shall be construed to cause us to
be considered "experts" within the meaning of Section 11 of the Securities Act
of 1933, as amended, or the rules thereunder.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE>
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We concent to the reference to our firm in the Registration Statement (Form S-8
No. 33-_________ ) pertaining to the Hagler Bailly, Inc. Employee Incentive and
Non-Qualified Stock Option and Restricted Stock Plan and to the incorporation by
reference therein of our report dated April 28, 1998, with respect to the
consolidated financial statements of Hagler Bailly, Inc. included in its 8-K,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Washington, DC
June 11, 1998
Exhibit 23.3
Consent of Gelman, Rosenberg & Freedman, Independant Certified Public
Accountants
We consent to the reference to our firm in the Registration Statement (Form S-8
No. 33- _______) pertaining to the Hagler Bailly, Inc. Employee Incentive and
Non-Qualified Stock Option and Restricted Stock Plan and to the Incorporation by
reference therein of our report dated March 17, 1997 with respect to the
consolidated financial statements of Hagler Bailly, Inc. included in its 8-K,
filed with the Securities and Exchange Commission.
/s/ Gelman, Rosenberg & Freedman
Gelman, Rosenberg & Freedman
June 11, 1998
