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As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RCM TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Nevada 95-1480559
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation of organization)
2500 McClellan Avenue, Suite 350
Pennsauken, New Jersey 08109-4613
(Address of principal executive offices)
Nonqualified Deferred Compensation Plan
(Full title of the plan)
Leon Kopyt
President and Chief Executive Officer
RCM Technologies, Inc.
2500 McClellan Avenue, Suite 350
Pennsauken, NJ 080109-4613
(856) 486-1777
(Name, Address and Telephone Number, including area code, of Agent for Service)
Copies to:
Richard A. Silfen, Esquire
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
(215) 963-5000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of Securities Number of` Proposed Maximum Proposed Maximum
to be Shares to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee (1)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, 3,000,000 (2) 100% $3,000,000 $792.00
$0.05 par value
======================================================================================================================
</TABLE>
(1) The Deferred Compensation Obligations are unsecured obligations of RCM
Technologies, Inc. to pay deferred compensation in the future in
accordance with the terms of the Nonqualified Deferred Compensation Plan
(2) Estimated solely for the purpose of determining the registration fee.
===============================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed by RCM Technologies, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement and made a
part hereof:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended October 31, 1999, as amended on Form 10-K/A filed with the Commission on
February 28, 2000;
(b) The Registrant's Transition Report on Form 10-Q for the transition
period from November 1, 1999 to December 31, 1999;
(c) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2000, June 30, 2000 and September 30, 2000;
(d) The Registrant's Current Report on Form 8-K filed with the
Commission on January 28, 2000;
(e) The description of Registrant's common stock, par value $0.05,
contained in the Registrant's Registration Statement filed on Form 10 on March
1, 1982.
All reports and other documents hereafter filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the
date of this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference from the date of filing of such documents. Any
statement contained in a document, incorporated, or deemed to be, by reference
herein or contained in this registration statement, 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, or is 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.
Under the Nonqualified Deferred Compensation Plan (the "Plan"), the Company will
provide eligible employees the opportunity to enter into agreements for the
deferral of a portion of their future cash compensation. The obligations of the
Company under such agreements (the "Obligations") will be unsecured general
obligations of the Company to pay the deferred compensation in the future in
accordance with the terms of the Plan, and will rank pari passu with other
unsecured and unsubordinated indebtedness of the Company from time to time
outstanding.
The amount of compensation to be deferred by each participating
employee will be determined in accordance with the Plan based on elections by
the employee. Each Obligation will be payable upon termination of employment or
retirement in accordance with the terms of the Plan. The Obligations will be
indexed to one or more earnings options (the "Earnings Options") individually
chosen by each employee participant from the list of mutual funds available
under the Plan. Each employee participant's Obligation will be adjusted to
reflect the investment experience of the selected Earnings Options, including
any appreciation or depreciation. The Company is under no obligation to invest
in such Earnings Options. The Obligations will be denominated and be payable in
United States dollars.
An employee participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary under
the Plan, by the terms of the Plan in the event there is no designated
beneficiary or by court order in the case of marital dispute.
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The Obligations are not subject to redemption, in whole or in part, at
the option of the Company prior to termination of employment, retirement or the
individual payment dates specified by the participating employees. The Plan
provides certain default distribution methods; however, participant may elect to
receive a distribution under the Plan in such manner as is acceptable to the
Plan Administrator. In addition, the Plan Administrator may, in its discretion,
direct that a participant be paid an amount (not to exceed his Obligation)
sufficient to meet a financial hardship as defined in the Plan. The Company
reserves the right to amend or terminate the Plan at any time, except that no
such amendment or termination shall (i) result in the distribution of amounts
credited to a participant's deferral account in any manner other than as
provided in the Plan, or (ii) reduce the availability of amounts previously
deferred. The rules relating to distribution may be generally altered or
specifically waived by the Plan Administrator in its sole discretion, but may
not reduce the availability of amounts previously deferred unless it is
necessary to do so to preserve the tax deferral on amounts deferred.
The Obligations are not convertible into another security of the
Company. The Obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the Company. No trustee
has been appointed having the authority to take action with respect to the
Obligations and each employee participant will be responsible for acting
independently with respect to, among other things, the giving of notices,
responding to any requests for consents, waivers or amendments pertaining to the
Obligations, enforcing covenants and taking action upon a default.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Subsection 1 of Section 78.7502 of the Nevada Revised Statutes ("NRS")
empowers a 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,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprises (an "Indemnified Party"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the Indemnified Party in connection with
such action, suit or proceeding if the Indemnified Party acted in good faith and
in a manner the Indemnified Party reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceedings, had no reasonable cause to believe the Indemnified Party's
conduct was unlawful.
Subsection 2 of Section 78.7502 of the NRS empowers a corporation to
indemnify any Indemnified Party who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in the capacity of an Indemnified Party against
expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by the Indemnified Party in connection with the defense or
settlement of such action or suit if the Indemnified Party acted under standards
similar to those set forth above, except that no indemnification may be made in
respect of any claim, issue or matter as to which the Indemnified Party shall
have been adjudged to be liable to the corporation or for amounts paid in
settlement to the corporation unless and only to the extent that the court in
which such action or suit was brought determines upon application that in view
of all the circumstances, the Indemnified Party is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Section 78.7502 of the NRS further provides that to the extent an
Indemnified Party has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in Subsection (1) or (2) described
above or in the defense of any claim, issue or matter therein, the corporation
shall indemnify the Indemnified Party against expenses (including attorneys'
fees) actually and reasonably incurred by the Indemnified Party in connection
therewith.
Subsection 1 of Section 78.751 of the NRS provides that any
discretionary indemnification under Section 78.7502 of the NRS, unless ordered
by a court or advanced pursuant to Subsection 2 of Section 78.751, may be made
by a corporation only as authorized in the specific case upon a determination
that indemnification of the Indemnified Person is proper in the circumstances.
Such determination must be made (a) by the stockholders, (b) by the board of
directors of the corporation by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding, (c) if a
majority vote of a quorum of such disinterested directors so orders, by
independent legal counsel in a written opinion, or (d) by independent legal
counsel in a written opinion if a quorum of such disinterested directors cannot
be obtained.
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Subsection 2 of Section 78.751 of the NRS provides that a corporation's
articles of incorporation or bylaws or an agreement made by the corporation may
require the corporation to pay as incurred and in advance of the final
disposition of a criminal or civil action, suit or proceeding, the expenses of
officers and directors in defending such action, suit or proceeding upon receipt
by the corporation of an undertaking by or on behalf of the officer or director
to repay the amount if it is ultimately determined by a court that he is not
entitled to be indemnified by the corporation. Said Subsection 2 further
provides that the provisions of that Subsection 2 do not affect any rights to
advancement of expenses to which corporate personnel other than officers and
directors may be entitled under contract or otherwise by law.
Subsection 3 of Section 78.751 of the NRS provides that indemnification
and advancement of expenses authorized in or ordered by a court pursuant to said
Section 78.751 does not exclude any other rights to which the Indemnified Party
may be entitled under the articles of incorporation or any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or in another capacity while holding his office.
However, indemnification, unless ordered by a court pursuant to Section 78.7502
or for the advancement of expenses under Subsection 2 of Section 78.751 of the
NRS, may not be made to or on behalf of any director or officer of the
corporation if a final adjudication establishes that his or her acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action. Additionally, the scope of such
indemnification and advancement of expenses shall continue as to an Indemnified
party who has ceased to hold one of the positions specified above, and shall
inure to the benefit of his or her heirs, executors and administrators.
The Registrant's Articles of Incorporation provide that the Company
shall, to the full extent permitted by the NRS, indemnify all persons whom it
has the power to indemnify pursuant thereto, including officers and directors of
Registrant.
Section 78.752 of the NRS empowers a corporation to purchase and
maintain insurance or make other financial arrangements on behalf of an
Indemnified Party for any liability asserted against such person and liabilities
and expenses incurred by such person in his or her capacity as an Indemnified
Party or arising out of such person's status as an Indemnified Party whether or
not the corporation has the authority to indemnify such person against such
liability and expenses.
The Registrant's Articles of Incorporation authorize the Registrant to
maintain insurance to cover such liabilities. The Registrant has purchased
Directors' and Officer's Liability Insurance to protect directors and officers
of the Registrant from any liability asserted against them for acts taken or
omissions occurring in their capacities as such. The Registrant's policy has an
aggregate liability limit of $10,000,000. The Registrant is not required to
maintain such insurance and there can be no assurance that the Registrant will
continue to maintain such insurance or coverage in such amounts.
Insofar as indemnification for liabilities 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
II-3
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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 or controlling person of the Registrant in a
successful defense of 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 issuer.
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.
Exhibit
Number Exhibit
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4 Nonqualified Deferred Compensation Plan
5 Opinion of Schreck Brignone Godfrey
23.1 Consent of Grant Thornton LLP
23.2 Consent of Schreck Brignone Godfrey (included in Exhibit 5)
24 Power of Attorney (included in signature page)
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 of 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement.
II-4
<PAGE>
(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, Form S-8 or Form F-3, 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 Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Pennsauken, state of New Jersey on this 21st day of
December, 2000.
RCM TECHNOLOGIES, INC.
By: /s/ Leon Kopyt
-------------------------------------
Leon Kopyt
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Leon Kopyt, his or her true and
lawful attorney-in-fact and agent, with full 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 and all amendments to this Registration
Statement (including post-effective amendments to the Registration Statement),
and to file the same, with all exhibits thereto, and any other documents in
connection therewith, granting unto said attorneys-in-fact and agents 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 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 has been signed below by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Leon Kopyt Chairman of the Board of Directors, December 21, 2000
---------------------------- President and Chief Executive
Leon Kopyt Officer (Principal Executive Officer)
/s/ Stanton Remer Director, Chief Financial Officer, December 21, 2000
---------------------------- Treasurer and Secretary (Principal
Stanton Remer Financial and Accounting Officer)
/s/ Norman S. Berson Director December 21, 2000
----------------------------
Norman S. Berson
/s/ Robert B. Kerr Director December 21, 2000
----------------------------
Robert B. Kerr
/s/ Woodrow B. Moats, Jr. Director December 21, 2000
----------------------------
Woodrow B. Moats, Jr.
/s/ Brian Delle Donne Director and Chief Operating December 21, 2000
---------------------------- Officer
Brian Delle Donne
</TABLE>
S-1
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RCM TECHNOLOGIES, INC.
INDEX TO EXHIBITS
Exhibit Number Document
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4 Nonqualified Deferred Compensation Plan
5 Opinion of Schreck Brignone Godfrey
23.1 Consent of Grant Thornton LLP
23.2 Consent of Schreck Brignone Godfrey (included in Exhibit 5)
24 Power of Attorney (included in signature page)
S-3
