As filed with the Securities and Exchange Commission on December 29, 1998.
Registration No. 333- _______
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BUTLER INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Maryland 06-1154321
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 Summit Avenue, Montvale, New Jersey 07645
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(Address of Principal Executive Offices) (Zip Code)
Butler International, Inc. Supplemental Executive Retirement Plan
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(Full title of the plan)
Warren F. Brecht, Secretary
Butler International, Inc.
110 Summit Avenue, Montvale, New Jersey 07645
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(Name and address of agent for service)
(201) 573-8000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed Proposed Amount of
to be registered registered maximum maximum Registration fee
offering aggregate offering
price per unit price(1)
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Butler $2,000,000 100% $2,000,000 $556
International, Inc.
Supplemental
Executive
Retirement Plan
Obligations(2)
(1) Estimated solely for the purpose of determining the registration fee.
(2) The Butler International, Inc. Supplemental Executive Retirement Plan
obligations are unsecured obligations of Butler International, Inc. to pay
deferred compensation in the future in accordance with the Butler
International, Inc. Supplemental Executive Retirement Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Incorporation of Documents by Reference
The documents listed in (a) through (c) below are incorporated by reference
in this registration statement and all documents subsequently filed by the
registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), 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 in the registration statement and to be part
thereof from the date of filing of such documents.
(a) The registrant's latest annual report filed pursuant to section 13(a) or
15(d) of the Exchange Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the registrant document referred
to in (a) above.
(c) The description of the class of securities contained in a registration
statement filed under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
Description of Securities
Under the Butler International, Inc. Supplemental Executive Retirement Plan
(the "Plan"), certain highly compensated senior management and other highly
compensated employees of Butler International, Inc. (the "Company") and certain
of its subsidiaries may defer a portion of their eligible compensation.
"Eligible compensation" means the compensation that would have been recognized
under the Company's qualified plan if such pay were not required to be reduced
by any deferrals made under the Plan nor limited by any maximum stated in the
Internal Revenue Code.
Amounts deferred by a participant under the Plan will be credited by book
entry to one or more deferred compensation accounts maintained on behalf of the
participant. The value of a participant's accounts will be based on the
performance of benchmark investment funds selected by the participant under the
Plan (including the Company stock fund) for purposes of accounting (as if the
deferred compensation had been so invested) and not for actual investment.
Since no participant deferrals actually will be invested in any investment fund,
participants will not have any ownership interest in any investment fund. The
Benefit Plan Administrative Committee appointed by the Board of Directors of the
Company has the sole discretion to determine the alternative benchmark
investment funds available under the Plan as the measurement mechanism to
determine the rate of return on amounts deemed invested in accordance with the
terms of the Plan.
The obligations of the Company under the Plan (the "Obligations") are
unsecured general obligations to pay in the future the value of the
participants' deferred compensation accounts (i) adjusted to reflect the
performance of the selected measurement investment funds and (ii) reduced by the
outstanding balance of any debt owed to the Company or any of its subsidiaries
by the respective participant upon termination of employment and (iii) further
reduced by any damages associated with the respective participant's termination
of employment for justifiable cause, if applicable, all such adjustments and
reductions in accordance with the terms of the Plan. The Obligations will rank
without preference with other unsecured and unsubordinated indebtedness of the
Company from time to time outstanding and are, therefore, subject to the risks
of the Company's insolvency.
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The Company is not required to fund or otherwise segregate assets to be
used for the payment of the Obligations. Notwithstanding the foregoing, the
Company maintains a trust to hold assets to be used for payment of Obligations.
The assets held by such trust will be subject to the claims of the Company's
general creditors.
Obligations are generally payable under the Plan upon (i) retirement at or
after age 55, (ii) disability, (iii) resignation or discharge, (iv) death, (v) a
determination by the Benefit Plan Administrative Committee that a participant
has suffered a financial hardship, and (vi) at the election of the participant,
a specific payment date designated by the participant at least five years from
the date the fixed period deferred compensation account is established and prior
to his termination of employment.
The Obligations cannot be assigned, alienated, pledged or encumbered. The
Obligations are not convertible into any security of the Company.
The Company may amend or terminate the Plan at any time, provided that any
benefits accrued by participants under the Plan before the effective date of the
applicable amendment or termination may not be reduced by such amendment or
termination without the participant's consent.
Indemnification of Directors and Officers
Section EIGHTH of the Articles of Incorporation authorizes the Company to
provide for indemnification of officers and directors through, among other ways,
a provision in its by-laws. Section 13 of Article III of the Company's By-laws
provides that the registrant shall indemnify its directors and officers from
liabilities and expenses to the fullest extent permitted by the Maryland General
Corporation Law (the "MGCL"). Accordingly, pursuant to the terms of the MGCL as
presently in effect, the Company may indemnify any director unless it is
established that: (i) the act or omission of the director was material to the
matter giving rise to the proceeding and was committed in bad faith or was the
result of active and deliberate dishonesty; (ii) the director actually received
an improper personal benefit in money, property or services; or (iii) in the
case of any criminal proceeding, the director had reasonable cause to believe
that the act or omission was unlawful. In addition, the Company's By-Laws
require the Company to indemnify each person who is or was a director, officer,
employee or agent of the Company to the fullest extent permitted by the laws of
the State of Maryland in the event he is involved in legal proceedings by reason
of the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the Company's request as a director, officer,
employee or agent of another corporation, partnership or other enterprise. The
Company may also advance to such persons expenses incurred in defending a
proceeding to which indemnification might apply, upon terms and conditions, if
any, deemed appropriate by the Board of Directors upon receipt of an undertaking
by or on behalf of such director or officer to repay all such advanced amounts
if it is ultimately determined that he is not entitled to be indemnified as
authorized by the laws of the State of Maryland.
Interests of Named Experts and Counsel
The firm of McBreen, McBreen & Kopko is issuing an opinion in connection
with the enforceability of certain deferred compensation obligations of the
Company under the Plan. Frederick H. Kopko, Jr. and Hugh G. McBreen, two
partners of McBreen, McBreen & Kopko, are directors and substantial shareholders
of the Company. Messrs. Kopko and McBreen have executed promissory notes to
purchase stock from the Company. The firm provides legal services to the
Company.
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Exhibits
4.1 Butler International, Inc. Supplemental Executive Retirement Plan and the
First Amendment thereto
4.2 Trust Under Butler International, Inc. Supplemental Executive Retirement
Plan
5 Opinion of Legal Counsel
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (contained in signature page)
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
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. 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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(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 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 this registration statement.
2. That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of 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
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liability under the Act, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 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 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 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 Montvale, State of New Jersey, on December 15, 1998.
BUTLER INTERNATIONAL, INC.
By: /s/ Warren F. Brecht
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Warren F. Brecht, Secretary
POWER OF ATTORNEY
We, the undersigned officers and directors of Butler International, Inc.,
hereby severally and individually constitute and appoint Warren F. Brecht and
Michael C. Hellriegel, and each of them, the true and lawful attorneys and
agents of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8, and all instruments necessary or advisable
in connection therewith, and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have power to act with or
without the other and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys and agents
and each of them to any and all such amendments and other instruments.
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 date indicated.
Name Title Date
- ---- ----- ----
/s/ Edward M. Kopko Chairman and Chief December 15, 1998
- -------------------------- Executive Officer
Edward M. Kopko (Principal Executive Officer)
/s/ Michael C. Hellriegel Senior Vice President and December 15, 1998
- -------------------------- Chief Financial Officer
Michael C. Hellriegel (Principal Financial Officer)
(Principal Accounting Officer)
/s/ Warren F. Brecht Secretary December 15, 1998
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Warren F. Brecht
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/s/ Frederick H. Kopko, Jr. Director December 15, 1998
- ----------------------------
Frederick H. Kopko, Jr.
/s/ Hugh G. McBreen Director December 15, 1998
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Hugh G. McBreen
/s/ John F. Hegarty Director
- ---------------------------- December 15, 1998
John F. Hegarty
/s/ Nikhil S. Nagaswami
- ---------------------------- Director December 15, 1998
Nikhil S. Nagaswami
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EXHIBIT INDEX
Exhibit No. Description
4.1 Butler International, Inc. Supplemental Executive Retirement
Plan and the First Amendment thereto
4.2 Trust Under Butler International, Inc. Supplemental Executive
Retirement Plan
5 Opinion of Legal Counsel
23 Consent of Deloitte & Touche LLP
24 Power of Attorney (contained in signature page)
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