As filed with the Securities and Exchange Commission on April 15, 1998
REGISTRATION NO. 333- 129904A01121296
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EA ENGINEERING, SCIENCE, AND TECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
Delaware 52-0991911
- -------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11019 McCormick Road
Hunt Valley, Maryland 21031
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(Address, including zip code of registrant's principal executive offices)
EA ENGINEERING, SCIENCE, AND TECHNOLOGY, INC.
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
---------------------------------------------
(Full title of the Plan)
Donald A. Deieso, Ph.D., President and Chief Executive Officer
EA Engineering, Science, and Technology, Inc.
11019 McCormick Road
Hunt Valley, Maryland 21031
(410) 584-7000
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------
With a Copy to:
Joseph Lunin, Esq.
Pitney, Hardin, Kipp & Szuch
P.O. Box 1945
Morristown, New Jersey 07962
(973) 966-6300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price aggregate offering registration fee2
per share (2) price (2)
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 (1) (1) (1) $30.98
par value 30,000 shares $3.50 $105,000
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
</TABLE>
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1. This registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein, as well as an indeterminate number of shares of
Common Stock which may be issuable under the antidilution and other
adjustment provisions of such plan pursuant to Rule 416(a) of the
Securities Act of 1933.
2. Estimated in accordance with Rule 457(h) solely for purposes of
calculating the registration fee and based upon the average of the high
and low sale prices of the Common Stock on the Nasdaq National Market
on April 9, 1998, as reported in the Wall Street Journal.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1 Plan Information
----------------
Not filed with this Registration Statement.
ITEM 2 Registrant Information and Employee Plan Annual Information
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Not filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 Documents Incorporated By Reference
-----------------------------------
The following documents filed by EA Engineering, Science, and
Technology, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are incorporated by reference in this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended August 31,
1997;
2. Quarterly Report on Form 10-Q for the fiscal quarter ended November
30, 1997;
3. Quarterly Report on Form 10-Q for the fiscal quarter ended February
28, 1998; and
4. Registration Statement on Form S-1, Registration No. 33-8958,
including the description of the Common Stock of the Company contained therein.
In addition, all documents filed by the Company and the Plan pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, hereby
are incorporated herein by reference and shall be deemed a part hereof from the
date of filing of such documents.
ITEM 4 Description of Securities
-------------------------
Not applicable.
ITEM 5 Interests of Named Experts and Counsel
--------------------------------------
Certain legal matters relating to the issuance of the shares of the
Company's Common Stock offered hereby have been passed upon by Pitney, Hardin,
Kipp & Szuch, counsel to the Company. Attorneys in the law firm of Pitney
Hardin, Kipp & Szuch do not own, beneficially, or otherwise, any shares of the
Company's Common Stock as of April 15, 1998.
The report of Arthur Andersen LLP, independent certified public
accountants, dated November 14, 1997, relating to the consolidated statements of
financial condition of the Company and its subsidiaries as of August 31, 1997
and 1996 and the related consolidated statements of income, changes in
shareholders' equity, and cash flows for each of the years in the three-year
period ended August 31, 1997, which report appears in the August 31, 1997 Annual
Report on Form 10-K of the Company, is incorporated herein by reference upon
authority of said firm as experts in accounting and auditing.
ITEM 6 Indemnification of Directors and Officers
-----------------------------------------
(a) Limitation of Liability of Directors and Officers. Section 102 of
the Delaware General Corporation Law permits a corporation to provide
in its Certificate of Incorporation that a director or officer shall
not be personally liable to the corporation or its shareholders for
breach of any duty owed to the corporation or its shareholders, except
that such provisions shall not relieve a director or officer from
liability for any breach of duty based upon an action or omission (a)
in breach of such person's duty of loyalty to the corporation or its
shareholders, (b) not in good faith or involving intentional misconduct
or a knowing violation of law, (c) involving the payment of unlawful
dividends or expenditure of funds for unlawful stock purchases or
redemptions, or (d) resulting in receipt by such person of any improper
personal benefit. Article EIGHTH of the Company's Certificate of
Incorporation includes limitation on the liability of officers and
directors to the fullest extent permitted by Delaware law.
(b) Indemnification of Directors, Officers, Employees and Agents. Under
Article TENTH of its Certificate of Incorporation, the Company shall
indemnify and advance expenses to its directors and officers to the
fullest extent permitted by the Company's Bylaws and the Delaware
General Corporation Law. Article VIII of the Company's Bylaws provides
that a director or officer shall be indemnified to the fullest extent
permitted under the Delaware General Corporation Law. Section 145 of
the Delaware General Corporation Law provides that a corporation may
indemnify its directors, officers, employees and agents against
judgments, fines, penalties, amounts paid in settlement and expenses,
including attorneys' fees, resulting from various types of legal
actions or proceedings if the actions of the party being indemnified
meet the standards of conduct specified therein. Determinations
concerning whether or not the applicable standard of conduct has been
met can be made by (a) a disinterested majority of the Board of
Directors, (b) independent legal counsel, or (c) an affirmative vote of
a majority of shares held by the shareholders. No indemnification is
permitted to be made to or on behalf of a corporate director, officer,
employee or agent if a judgment or other final adjudication adverse to
such person establishes that his acts or omissions (a) were in breach
of his duty of loyalty to the corporation or its shareholders, (b) were
not in good faith or involved a knowing violation of law or (c)
resulted in receipt by such person of an improper personal benefit.
Pursuant to Section 102(b)(7) of the Delaware General
Corporation Law, Article EIGHTH, Paragraph 9 of the Company's
Certificate of Incorporation provides that no director of the Company
shall be liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived an improper personal
benefit.
ITEM 7 Exemption from Registration Claimed
-----------------------------------
Not applicable.
ITEM 8 Exhibits
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5 Opinion of Pitney, Hardin, Kipp & Szuch, as to the legality of
the securities being registered
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5
hereto)
99 EA Engineering, Science, and Technology, Inc. 1995 Non-Employee
Director Stock Option Plan
ITEM 9 Undertakings
------------
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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.
(b) That, for purposes 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.
(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 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 section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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.
3. 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.
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 Hunt Valley, Maryland on April 15, 1998.
EA ENGINEERING, SCIENCE, AND TECHNOLOGY, INC.
DONALD A. DEIESO
By:__________________________________________________
Donald A. Deieso, Ph.D., President and
Chief Executive Officer
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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
LOREN D. JENSEN
- ------------------------------------------- Chairman of the Board of Directors April 15, 1998
Loren D. Jensen, Ph.D.
DONALD A. DEIESO
- ------------------------------------------- President, Chief Executive Officer April 15, 1998
Donald A. Deieso, Ph.D. and Director
BARBARA L. POSNER Senior Vice President, Finance and
- ------------------------------------------- Administration (principal financial April 15, 1998
Barbara L. Posner officer)
EDMUND J. CASHMAN, JR.
- ------------------------------------------- Director April 15, 1998
Edmund J. Cashman, Jr.
RUDOLPH P. LAMONE
- ------------------------------------------- Director April 15, 1998
Rudolph P. Lamone, Ph.D.
CLEAVELAND D. MILLER
- ------------------------------------------- Director April 15, 1998
Cleaveland D. Miller, Esq.
GEORGE G. RADCLIFFE
- ------------------------------------------- Director April 15, 1998
George G. Radcliffe
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Plan
administrators have duly caused this Registration Statement to be signed on
behalf of the Plan by the undersigned, thereunto duly authorized, in Hunt
Valley, Maryland on April 15, 1998.
EA ENGINEERING, SCIENCE, AND TECHNOLOGY, INC. 1995 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
By: MEREDITH M. CONKLIN
-----------------------------------------------------------
Meredith M. Conklin, V.P. Human Resources,
as Plan Administrator
<PAGE>
INDEX TO EXHIBITS
Exhibit 5
Opinion of Pitney, Hardin, Kipp & Szuch, as to the legality of the
securities being registered
Exhibit 23(a)
Consent of Arthur Andersen LLP
Exhibit 23(b)
Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5
hereto)
Exhibit 99
EA Engineering, Science, and Technology, Inc. 1995 Non-Employee
Director Stock Option Plan
PITNEY, HARDIN, KIPP & SZUCH
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962-1945
April 15, 1998
EA Engineering, Science, and Technology, Inc.
11019 McCormick Road
Hunt Valley, Maryland 21031
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") by EA Engineering, Science, and Technology, Inc. (the
"Company") relating to 30,000 shares of the Company's Common Stock, par value
$0.01 per share (the "Securities"), offered pursuant to the Company's 1995
Non-Employee Director Stock Option Plan (the "Plan").
We have examined originals, or copies certified or otherwise
identified to our satisfaction, of such corporate records, documents,
agreements, instruments and certificates of public officials of the State of
Delaware and of officers of the Company as we deemed necessary in order to
express the opinion hereinafter set forth.
Based on the foregoing, we are of the opinion that, when the
Securities have been duly issued as contemplated by the Registration Statement
(including the Prospectus which is not filed therewith) and the Plan and for the
consideration determined in accordance with the terms of the Plan, the
Securities will be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the Federal laws of the United
States and the corporate law of the State of Delaware, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to use of this opinion as an Exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act, or the Rules and Regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
PITNEY, HARDIN, KIPP & SZUCH
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statemnt of our report dated November 14, 1997,
included in EA Engineering, Science and Technology, Inc.'s Form 10-K for the
year ended August 31, 1997, and to all references to our Firm included in this
registration statement. It should be noted that we have not audited any
financial statements of the Company subsequent to August 31, 1997, or performed
any audit procedures subsequent to the date of our report.
ARTHUR ANDERSEN LLP
Baltimore, Maryland
April 13, 1998
Exhibit 99
EA ENGINEERING, SCIENCE, AND TECHNOLOGY, INC.
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. The purpose of the 1995 Non-Employee Director Stock Option
Plan (the "Plan" is to recognize the valuable contributions of its non-employee
directors to the management of the Corporation's business and affairs and to
provide those directors with a means to share in the Corporation's success.
2. Eligibility. The only individuals who shall be eligible to
participate in the Plan shall be those directors of the Corporation who are not
and have not been for the preceding twelve (12) months employees of the
Corporation (a "Director").
3. Stock. The stock subject to the options and other provisions of the
Plan shall be shares of the Corporation's common stock, par value $.01 per
share, which is authorized but unissued, or reacquired common stock (the "Common
Stock"). Subject to adjustment in accordance with the provisions of Section 5(e)
hereof, the total amount of Common Stock on which options may be granted to
persons participating under the Plan shall not exceed in the aggregate 30,000
shares.
4. Grant of Options.
(a) On the Effective Date [which will be the Annual Shareholder's
Meeting (see 6.[b] page 4 of this document)], each person who on that date was a
Director shall automatically be granted an option to purchase 1,000 shares of
Common Stock at a per share price equal to the fair market value of the Common
Stock on said Effective Date. The fair market value per share of the Common
Stock shall be the average of the highest and lowest sale prices in the
over-the-counter market as reported by The Wall Street Journal.
(b) Each person who becomes a Director after the Effective Date
shall, upon obtaining such status, be granted an option to purchase 1,000 shares
of Common Stock at the fair market value of the Common Stock (as defined in
Section 4(a), supra) on the date such person becomes a Director.
5. Terms and Conditions of Options. Stock options granted pursuant to
the Plan shall be evidenced by agreements in such form as the Board of Directors
shall, from time to time, approve, which agreements shall in substance include
and comply with and be subject to the following terms and conditions:
(a) Medium and Time of Payment. The option price shall be payable
in United States dollars upon the exercise of the option and may be paid in cash
or by certified check, bank draft or money order payable to the order of the
Corporation. The option price may also be paid in the form of shares of Common
Stock already owned by the Director, which shall be valued at the average of the
highest and lowest sale prices for the Common Stock on the over-the-counter
market on the date that the option is exercised, as reported by the Wall Street
Journal. The "date that the option is exercised" shall be the date on which the
Director delivers written notice of exercise of the option to the Secretary of
the Corporation.
(b) Expiration of Options. Each option granted under the Plan
shall expire not more than five (5) years from the date such option is granted.
(c) Exercise of Option. Unless otherwise provided in the option
agreement, each option granted under the Plan shall be fully vested and
exercisable on the date the option is granted, and any option granted hereunder
may be exercised in whole at any time, or in part from time to time, during its
term.
(d) Termination of Service.
(i) In the event a Director ceases to be a director of the
Corporation due to death or disability, all of the options shall immediately
become fully vested and exercisable and shall remain so for a period of one (1)
year from the date of termination of service, but in no event after their
respective expiration dates.
(ii) In the event a Director voluntarily or involuntarily
ceases to be a director of the Corporation for any reason other than death or
disability within six months after a Change in Control, all of the Director's
options shall immediately become fully vested and exercisable and shall remain
so for a period of one (1) year from the date of termination of service as a
director, but in no event after their respective expiration dates.
(iii) In the event a Director ceases to be a director of the
Corporation for any other reason, all of the Director's options shall terminate
immediately.
(e) Adjustments on Changes in Stock. The aggregate number of
shares of Common Stock on which options may be granted to persons eligible to
participate in the Plan, the number of shares thereof covered by each
outstanding option and the price per share thereof in each such option, shall,
subject to any required action by the stockholders of the Corporation, be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from the subdivision or consolidation of shares
or other capital adjustment, or the payment of a stock dividend, or other
increase or decrease in such shares, effected without receipt of consideration
by the Corporation; provided, however, that no such adjustment shall be made
unless and until the aggregate effect of all such increases and decreases
accruing after the effective date of the Plan shall have increased or decreased
the number of issued shares of Common Stock by five percent (5 %) or more; and
provided, further, that any fractional shares resulting from any such adjustment
shall be eliminated.
Except as hereinbefore expressly provided, the Director shall have
no rights by reason of any subdivision or consolidation of shares of stock of
any class or the payment of any stock dividend or other increase or decrease in
the number of shares of stock of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation; and any issue by the Corporation of shares of stock of any class or
securities convertible into shares of stock of any class shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to the option.
The grant of an option pursuant to the Plan shall not affect in
any way the right or power of the Corporation to make adjustments,
reclassification, reorganizations or changes of its capital or business
structure, to merge, consolidate, dissolve or liquidate or to transfer all or
any part of its business or assets.
(f) Assignability. No option shall be assignable or transferable
except by will or by the laws of descent and distribution. During the lifetime
of a Director, an option shall be exercisable only by him.
(g) Agreement by Director. If, at the time of the exercise of any
option, it is necessary or desirable that the Director exercising the option
shall agree that he or she will purchase the shares that are subject to the
option for investment and not with any present intention to resell the same, the
Director will, at the request of the Board of Directors, execute and deliver to
the Corporation an agreement to such effect.
(h) Tax Withholding. The Director may remit to the Corporation at
the time of exercise of an option any taxes required to be withheld by the
Corporation under federal, state or local law as a result of the exercise of
such option. Alternatively, the Director may (i) direct the Corporation to
withhold from the shares to be received upon such exercise the number of shares
sufficient to satisfy the applicable tax withholding requirements or (ii)
deliver shares already owned by the Director in satisfaction of the tax
withholding requirements. In either event, such shares will be valued at the
fair market value (as defined in Section) of the Common Stock on the date of
exercise of the option. If the Director does not remit such taxes at the time of
exercise of an option, the Director will be deemed to have authorized the
Corporation to withhold such taxes in accordance with applicable law from any
cash compensation payable to him.
(i) Other Conditions. The option agreements authorized under the
Plan may contain such other provisions as the Board of Directors shall deem
advisable.
6. Certain Definitions. For purposes of the Plan, the following terms
shall have the indicated meanings:
(a) a "Change in Control" shall be deemed to have occurred if any
"person" (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing forty percent (40%) or more of the
combined voting power of the Corporation's then outstanding securities.
(b) the "Effective Date" shall be the date on which the
shareholders of the Corporation approve the Plan; provided that if the
Corporation shareholders do not approve the Plan at the Corporation's regularly
scheduled 1995 Annual Shareholders Meeting (including any and all adjournments
and continuations thereof), no options shall be awarded hereunder and this Plan
shall be null and void ab initio and shall thenceforth be without any further
force or effect whatsoever.
7. Modification of Options. Subject to the terms and conditions and
within the limitations of the Plan, the Board of Directors may modify
outstanding options (to the extent not theretofore exercised); provided,
however, that any such modifications shall be limited to those which are not
adverse to the interests of the Director or are necessary to cause the Plan or
options to comply with any applicable legal requirements.
8. Amendment of the Plan. The Board of Directors may, from time to
time, with respect to any shares reserved under the Plan but not subject to
options, revise or amend the Plan in any respect. However, the Board of
Directors may not: (a) amend or alter the Plan to provide for the exercise of
discretion by any person with respect to the granting of options or the number
of shares on which options will be granted; or (b) fix the option price at less
than the fair market value of the Common Stock on the date the option is
granted.
9. Termination. Subject to the provisions of Section 7 hereof, the Plan
shall terminate for the purpose of granting options when options have been
granted on the total number of shares set forth in Section 3 above. Such
termination shall not affect the validity of any option then outstanding which
shall continue to be governed by the Plan and related agreement until it
expires, by exercise or otherwise.
10. Employment. Nothing contained in the Plan or in any option
agreement confers upon any Director any right with respect to the continuance of
employment by the Corporation and/or any of its subsidiaries or interferes, in
any way, with the right of the Corporation or any of its subsidiaries to
terminate any employee's employment or to change his or her compensation at any
time.
11. No Rights As Shareholder. Subject to the provisions of the
applicable option, no Director shall have any right as a shareholder with
respect to any shares of Common Stock to be distributed under the Plan until the
Director becomes the holder thereof. A Director to whom Common Stock is issued
shall be considered the holder of the Common Stock at the time of the delivery
of the certificate evidencing such shares, except as otherwise expressly
provided herein.
12. Exchange Act Section 16. Transactions under this Plan are intended
to comply with all applicable conditions of Rule 16b-3 promulgated under Section
16 of the Securities Exchange Act of 1934, as amended, or any successor
provision of similar import. To the extent any provision of the Plan or action
by the Board fails so to comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Board.
13. Shareholder Approval. The Plan shall be submitted for approval by
the shareholders of the Corporation within twelve (12) months from the date the
Plan is adopted by the Board of Directors, and the effectiveness of the Plan and
the exercisability of any option granted pursuant to the Plan are subject to the
receipt of such shareholder approval.
