SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
SPAR GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0684451
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
580 White Plains Road
White Plains, New York 10591
(914) 332-4100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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2001 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Charles Cimitile
Chief Financial Officer and Secretary
SPAR GROUP, INC.
580 White Plains Road
White Plains, New York 10591
(914) 332-4100
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Lawrence David Swift, Esq.
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of the Registration Statement.
CALCULATION OF REGISTRATION FEE
==================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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Common Stock, $.01 par value 500,000 $1.75 (1) 875,000 $218.75
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(1) For the purpose of calculating the registration fee pursuant to Rule 457(c) of the Securities
Act of 1933, as amended, on the basis of the average of the high and low prices per share of
Common Stock as reported on the NASDAQ Small Cap Stock Market on November 5, 2001, a day
within five business days of this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by SPAR Group, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission"), as
noted below, are incorporated by reference into this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, as filed with the Commission on April 11, 2001;
(2) The Company's Amendment No. 1 to Annual Report on Form 10-K/A for the
fiscal year ended December 31, 2000, as filed with the Commission on
April 20, 2001;
(3) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2001 as filed with the Commission on May 15, 2001;
(4) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2001 as filed with the Commission on August 14, 2001;
(5) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on
February 22, 1996; and
(6) All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, 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, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing such documents. Any statement
contained in any 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 modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed to constitute
a part of this Registration Statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Jenkens & Gilchrist Parker Chapin LLP, New York, New
York. Certain principals of Jenkens & Gilchrist Parker Chapin LLP beneficially
own shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Article VI of the Company's Bylaws
provides that the Company may indemnify its officers and Directors to the full
extent permitted by law. Section 145 of the General Corporation Law of the State
of Delaware (the "GCL") provides that a Delaware corporation has the power to
indemnify anyone who is or was serving as a director or officer of the
corporation in certain circumstances.
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Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify (i) any director or officer; or (ii) any former director or officer,
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), against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding provided that such director, officer or other
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, provided that such director or officer had no
reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify (i) any director or officer; or (ii) former director or officer 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 any of the
capacities set forth above, against expenses actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such director, officer or other person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director, officer or other person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that despite the adjudication of liability but
in view of all the circumstances of the case, such director, officer or other
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery shall deem proper.
Section 145 of the GCL further provides that (i) to the extent a present or
former director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) or in
the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; (ii) indemnification provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; and (iii) the corporation shall have
power to purchase and maintain insurance on behalf of (a) a director or officer
of the corporation or (b) a former director or officer against any liability
asserted against him or her or incurred by him or her in any such capacity or
arising out of his or her status as such whether or not the corporation would
have the power to indemnify him or her against such liability under Section 145.
Article Ninth of the Company's Certificate of Incorporation currently
provides that each Director shall not be personally 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 GCL, or (iv) for any transaction from which the Director
derived an improper benefit.
The Company carries directors' and officers' liability insurance covering
its directors and officers.
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ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
- --------------- --------------------------------------------------------------
4.1 2001 Employee Stock Purchase Plan.*
5.1 Opinion of Jenkens & Gilchrist Parker Chapin LLP as to the
legality of the Common Stock registered hereby.
23.1 Consent of Jenkens & Gilchrist Parker Chapin LLP (contained in
the opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on Page II-6 hereto).
*Incorporated by reference to the Company's Proxy Statement on Schedule 14A, as
filed with the Securities Exchange Commission on July, 12, 2001.
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;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (i) and (ii) above do not apply if 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 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.
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(C) Insofar as indemnification for liabilities 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 Company
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 Tarrytown, State of New York, on this 6th day of
November, 2001.
SPAR GROUP, INC.
By: /s/ Robert G. Brown
-------------------------------------
Robert G. Brown
Chairman of the Board, Chief Executive
Officer, President and Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Robert G. Brown and William H. Bartels as
his true and lawful attorney-in-fact and agent, each 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 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, 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 or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their 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 by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board, Chief Executive November 6, 2001
Officer, President and Director
/s/ Robert G. Brown (Principal Executive Officer)
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Robert G. Brown
Chief Financial Officer and Secretary November 6, 2001
(Principal Financial and Accounting
/s/ Charles Cimitile Officer)
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Charles Cimitile
/s/ William H. Bartels Vice Chairman and Director November 6, 2001
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William H. Bartels
/s/ Robert O. Aders Director November 6, 2001
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Robert O. Aders
/s/ Jack W. Partridge Director November 6, 2001
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Jack W. Partridge
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/s/ Jerry Gilbert Director November 6, 2001
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Jerry Gilbert
/s/ George W. Off Director November 6, 2001
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George W. Off
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EXHIBIT INDEX
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Exhibit No. Description of Exhibit
- --------------- --------------------------------------------------------------
4.1 2001 Employee Stock Purchase Plan.*
5.1 Opinion of Jenkens & Gilchrist Parker Chapin LLP as to the
legality of the Common Stock registered hereby.
23.1 Consent of Jenkens & Gilchrist Parker Chapin LLP (contained in
the opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on Page II-6 hereto).
*Incorporated by reference to the Company's Proxy Statement on Schedule 14A, as
filed with the Securities Exchange Commission on July, 12, 2001.
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EXHIBIT 5.1
Jenkens & Gilchrist Parker Chapin LLP
AUSTIN, TEXAS
THE CHRYSLER BUILDING (512) 499-3800
405 LEXINGTON AVENUE CHICAGO, ILLINOIS
NEW YORK, NEW YORK 10174 (312) 425-3900
DALLAS, TEXAS
(212) 704-6000 (214) 855-4500
FACSIMILE (212) 704-6288 HOUSTON, TEXAS
(713) 951-3300
www.jenkens.com LOS ANGELES, CALIFORNIA
(310) 820-8800
SAN ANTONIO, TEXAS
(210) 246-5000
WASHINGTON, D.C.
(202) 326-1500
November 6, 2001
SPAR Group, Inc.
580 White Plains Road
Tarrytown, NY 10591
Ladies and Gentlemen:
We have acted as counsel for SPAR Group, Inc., a Delaware corporation (the
"Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act") relating to
the registration of 500,000 shares of Common Stock, par value $.01 per share
(the "Shares"), issuable pursuant to the Company's 2001 Employee Stock Purchase
Plan (the "Plan").
In connection with the foregoing, we have examined the Registration Statement
and originals or copies, satisfactory to us, of the following: (i) the
certificate of incorporation and all amendments thereto of the Company as
certified by the Secretary of State of the State of Delaware on April 3, 2000;
(ii) the by-laws and all amendments thereto of the Company; (iii) a unanimous
written consent of the Board of Directors of the Company dated June 29, 2001, by
which resolutions were adopted relating to the approval of the Plan (items (i)
through (iii) will be referred to individually as a "Organizational Document"
and collectively as the "Organizational Documents"); and (iv) the Plan. In
addition, we have made such other investigations of applicable statutes and
regulations of the State of New York and the United States of America and the
applicable provisions of the DGCL (as hereinafter defined) currently in effect
as we deemed necessary under customary practice to enable us to render this
Opinion Letter.
In conducting our examination, we have assumed (with your consent) the
genuineness of all signatures , the legal capacity of all individual
signatories, the accuracy of all documents submitted to us as originals and the
conformity to originals of all documents submitted to us as copies (whether or
not certified). As to any facts material to such opinion, we have relied on
certificates of public officials and certificates, oaths and declarations of
officers or other representatives of the Company. Each of the governmental
certificates, publicly filed or recorded items and searches of public record (if
any) reviewed by us were obtained by an independent firm not under our control
or supervision, and we have assumed (with your consent) that they are sufficient
and would disclose no additional relevant facts if updated through the date of
this Opinion Letter. In addition, we have assumed (with your consent) and
without independent investigation have relied upon the factual accuracy of the
information contained in the items we examined and upon the assumptions we have
made in this Opinion Letter. Except as expressly set forth in this Opinion
Letter, we have not undertaken any independent investigation, examination or
inquiry to confirm or determine the existence or absence of any facts, searched
any of the books, records or files of the Company or any other person, searched
any internal file, court file, public record or other information collection, or
examined or reviewed any communication, instrument, agreement, document, file,
financial statement, tax return, minute, record, lien, or other item. The
Organizational Documents, the Plan and the Registration Statement are the only
items of their respective types reviewed by us in connection with or covered by
us in this Opinion Letter.
Jenkens & Gilchrist Parker Chapin LLP
November 6, 2001
Page 2
Our opinion is as of and limited to the date hereof and we do not in any event
undertake to advise you of any facts or circumstances occurring or coming to our
attention or any changes in applicable law subsequent to the date hereof.
Whenever any opinion of ours refers to or includes the payment or other
performance of any obligation or the issuance, execution or delivery of any
instrument, certificate or othe ritem after the date hereof, it is based on our
assumption that: (i) all relevant facts and circumstances will be the same at
such future time as we believe them to be on the date hereof (except as noted in
the next clause (ii)); (ii) each party will have taken all future or further
actions necessary or appropriate thereto; (iii) no relevant liens, filings,
approvals, permits or similar items will have expired or otherwise adversely
changed; and (iv) no changes will have occurred in any of the Registration
Statement, the Plan, the Organizational Documents, or other relevant
certificates and documents, applicable law, trade usage or course of dealings.
Finally, we are counsel admitted to practice only in the State of New York, and
we express no opinions as to the applicable laws of any jurisdiction other than
those of the State of New York, the Delaware General Corporation Law,including
the Constitution of the State of Delaware and reported judicial interpretations
thereof (together with the Delaware General Corporation Law, the "DGCL") and the
United States of America.
Based upon and subject to the foregoing, we are of the opinion that the Shares
to be issued pursuant to the Plan will be, when issued and fully paid for
pursuant to the provisions of the Plan, legally issued, fully paid and
non-assessable.
We hereby consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement. In giving this consent, however, we are not thereby
admitting that we are within the category of persons whose consent is required
under Section 7 of the Act, the rules and regulations of the Securities Exchange
Commission promulgated thereunder, or Item 509 of Regulation S-K promulgated
under the Act.
Very truly yours,
/s/ Jenkens & Gilchrist Parker Chapin LLP
Jenkens & Gilchrist Parker Chapin LLP
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the SPAR Group, Inc. 2001 Employee Stock Purchase Plan, of
our report dated March 2, 2001, with respect to the consolidated financial
statements of SPAR Group, Inc. included in its Annual Report (Form 10-K/A) for
the year ended December 31, 2000, filed with the Securities and Exchange
Commission.
Minneapolis, Minnesota /s/ Ernst & Young LLP
November 7, 2001