<PAGE> 1
As filed with the Securities and Exchange Commission on July 25, 1995.
Registration No. 33-____________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
GREINER ENGINEERING, INC.
(Exact name of registrant as specified in its charter)
NEVADA 95-1799320
------------------------------- -------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
909 EAST LAS COLINAS BOULEVARD, SUITE 1900
IRVING, TEXAS 75039-3907
(214) 869-1001
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
_________________________
1991 STOCK OPTION PLAN
OF
GREINER ENGINEERING, INC.
(Full title of Plan)
_________________________
ROBERT L. COSTELLO COPY TO: ALAN J. BOGDANOW, ESQ.
PRESIDENT AND CHIEF OPERATING OFFICER HUGHES & LUCE, L.L.P.
GREINER ENGINEERING, INC. 1717 MAIN STREET, SUITE 2800
909 EAST LAS COLINAS BOULEVARD DALLAS, TEXAS 75201
SUITE 1900
IRVING, TEXAS 75039-3907
(214) 869-1001
(Name, address, and telephone number,
including area code, of agent for service)
_________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.50 par value 250,000 $10.88 $2,720,000 $937.93
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate additional amount of
shares of Common Stock to be offered or sold pursuant to the antidilution
provisions of the 1991 Stock Option Plan of Greiner Engineering, Inc.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price paid per share of Greiner
Engineering, Inc. Common Stock, as reported on the New York Stock Exchange
on July 19, 1995, all in accordance with Rule 457(h) promulgated under the
Securities Act of 1933, as amended.
Page 1 of 11 sequentially numbered pages.
The Index to Exhibits is on page 8.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents which have been heretofore filed with the
Securities and Exchange Commission (the "Commission") by Greiner Engineering,
Inc. (the "Company") are incorporated by reference in this Registration
Statement:
(a) Annual Report on Form 10-K for the year ended December 31,
1994, which contains audited financial statements of the Company for the fiscal
year ended December 31, 1994 (the "1994 Form 10-K").
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the 1994 Form 10-K (including the Company's most recent Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995).
(c) The description of the Company's common stock, par value $.50
per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A, dated November 18, 1991, including any amendment or
report filed for the purpose of updating such description.
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 to this Registration Statement which indicates that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Page 2
<PAGE> 3
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 subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Articles of Incorporation provide, consistent
with the provisions of Section 78.751 of the Nevada General Corporation Law
(the "NGCL"), that the Company may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of any corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding. The power to indemnify applies only if
such person acted in good faith and in a manner he reasonably believed to be in
the best interest, or not opposed to the best interest, of the corporation and
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The power to indemnify applies to actions
brought by or in the right of the corporation as well, but only to the extent
of defense and settlement expenses actually and reasonably incurred and not to
any satisfaction of a judgment or settlement of the claim itself, and with the
further limitation that in such actions no indemnification shall be made in the
event of any adjudication of negligence or misconduct in the performance of his
duties to the Company, unless the court believes that in light of all the
circumstances indemnification should apply.
The Company's Restated Articles of Incorporation provide, consistent
with the provisions of the NGCL, that no director of the Company will be
personally liable to the Company or any of its stockholders for monetary
damages arising from the director's breach of fiduciary duty as a director.
However, this does not apply with respect to the payment of dividends in
violation of Section 78.300 of the NGCL nor does it apply with respect to any
liability for acts or omissions which involve intentional misconduct, fraud or
a knowing violation of law. Any repeal or modification of this provision by
the stockholders of the Company shall be prospective only and shall not
adversely affect any limitation of the personal liability of a director or
officer for acts or omissions prior to such repeal or modification.
Page 3
<PAGE> 4
To the extent any of the persons referred to in the two immediately
preceding paragraphs is successful in the defense of actions referred to
therein on the merits or otherwise, such person is entitled, pursuant to
Section 78.751 of the NGCL, to indemnification as described above.
The Company has entered into indemnity agreements with each of its
directors. Each such Indemnification Agreement provides for indemnification of
directors of the Company to the fullest extent permitted by the NGCL. To the
extent that the board of directors or the stockholders of the Company may in
the future wish to limit or repeal the ability of the Company to indemnify
directors, such repeal or limitation may not be effective as to directors who
are currently parties to the Indemnification Agreements, because their rights
to full protection are contractually assured by the Indemnification Agreements.
It is anticipated that similar contracts may be entered into, from time to
time, with future directors of the Company.
Insofar as indemnification by the Company for liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act") may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page E-1 of this Registration Statement, which Index is
incorporated herein by reference.
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 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;
Page 4
<PAGE> 5
(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
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 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 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.
(b) 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 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.
(c) Insofar as indemnification by the registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described in
Item 6, 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 by the registrant 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 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 5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Irving, State of Texas, on July 24,
1995.
GREINER ENGINEERING, INC.
By: /s/ Patrick J. McColpin
Patrick J. McColpin, Vice President and
Chief Financial Officer
Page 6
<PAGE> 7
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Patrick J. McColpin, 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 other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grants to
such 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, 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 of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Frank T. Callahan Chairman of the Board, July 21, 1995
---------------------- Chief Executive Officer
Frank T. Callahan and Director (Principal
Executive Officer)
/s/ Patrick J. McColpin Vice President and July 21, 1995
------------------------ Chief Financial Officer
Patrick J. McColpin (Principal Financial Accounting
Officer)
/s/ William H. Bowen Director July 21, 1995
----------------------
William H. Bowen
/s/ Larry J. Cain Director July 21, 1995
----------------------
Larry J. Cain
/s/ Russell Cleveland Director July 21, 1995
----------------------
Russell Cleveland
/s/ William E. Guthner, Jr. Director July 21, 1995
----------------------------
William E. Guthner, Jr.
/s/ Patrick M. Sullivan Director July 21, 1995
------------------------
Patrick M. Sullivan
</TABLE>
Page 7
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Exhibit Numbered Page
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
4.1 1991 Stock Option Plan of Greiner Engineering, Inc. as
amended (the "Plan") (incorporated by reference to
Exhibit 4.1 to Form S-8 filed July 31, 1991)
--
4.2 Amendment No. 1 to the Plan (incorporated by reference
to Exhibit 10.15 to Annual Report on Form 10-K for year
ended December 31, 1993) --
4.3 Amendment No. 2 to the Plan 9
5.1 Opinion of Hughes & Luce, L.L.P. 10
24.1 Consent of Hughes & Luce, L.L.P.
(Contained in Exhibit 5.1) --
24.2 Consent of Price Waterhouse LLP 11
25. Power of Attorney (Contained at page 7) --
</TABLE>
Page 8
<PAGE> 1
EXHIBIT 4.3
AMENDMENT NO. 2
TO THE 1991 STOCK OPTION PLAN
OF GREINER ENGINEERING, INC.
Paragraph 4. Stock Reserved for the 1991 Plan is hereby amended to read as
follows:
4. Stock Reserved for the 1991 Plan. Subject to the
adjustments provided for in Paragraph 9 hereof, a total of 650,000
shares of Common Stock ("Stock") of the Company shall be subject to
the 1991 Plan. The shares subject to the 1991 Plan shall consist of
unissued shares or previously issued shares reaquired and held by the
Company, and such amount of shares shall be and is hereby reserved for
sale for such purpose. Any of such shares which may remain unsold and
which are not subject to outstanding Options at the termination of the
1991 Plan shall cease to be reserved for the purpose of the 1991 Plan,
but until termination of the 1991 Plan the Company shall at all times
reserve a sufficient number of shares to meet the requirements of the
1991 Plan. Should any Option expire or be cancelled prior to its
exercise in full, the shares theretofore subject to such Option may
again be subject to an Option under the 1991 Plan. Should any shares
previously acquired pursuant to an Option be paid to the Company for
the purchase price of shares upon exercise of an Option (as
contemplated in Paragraph 7(c) below), the number of shares so paid to
the Company may again be subject to an Option under the 1991 Plan.
All other provisions of the Plan remain the same.
<PAGE> 1
EXHIBIT 5.1
[Hughes & Luce, L.L.P. Letterhead]
July 20, 1995
Greiner Engineering, Inc.
909 East Las Colinas Boulevard, Suite 1900
Irving, Texas 75039-3907
Re: Registration Statement on Form S-8 for Amendment No. 2 to the
1991 Stock Option Plan of Greiner Engineering, Inc. (the
"Registration Statement")
Ladies and Gentlemen:
We have acted as special counsel to Greiner Engineering, Inc., a
Nevada corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, of 250,000 shares (the "Shares") of the
Company's common stock, $.50 par value per share, issuable upon the exercise of
stock options to be granted pursuant to the 1991 Stock Option Plan of Greiner
Engineering, Inc., as amended (the "Plan"). The Shares are being registered
pursuant to a registration statement on Form S-8 to be filed with the
Securities and Exchange Commission on or about July 21, 1995 (the "Registration
Statement").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be,
if and when issued and paid for pursuant to the Plan, validly issued, fully
paid and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of common stock available for such issuance, and
further assuming that the consideration actually received by the Company for
the Shares exceeds the par value thereof.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
HUGHES & LUCE, L.L.P.
<PAGE> 1
EXHIBIT 24.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 22, 1995,
appearing on page 13 of Greiner Engineering, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1994. We also consent to the incorporation by
reference in this Registration Statement of our report dated April 28, 1995
appearing on page 7 of the Annual Report of the Greiner Engineering, Inc.
Performance Plan and Employee Stock Ownership Plan on Form 11-K for the year
ended December 31, 1994.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Dallas, Texas
July 20, 1995
