- Securities Registration: Employee Benefit Plan (S-8)
July 13 2009 - 5:17PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on July 13, 2009.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
THE SHAW GROUP INC.
(Exact name of registrant as specified in its charter)
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Louisiana
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72-1106167
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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4171 Essen Lane, Baton Rouge, Louisiana 70809
(Address of Principal Executive Offices)(Zip Code)
The Shaw Group Inc. 401(k) Plan
-and-
The Shaw Group Inc. 401(k) Plan for Certain Hourly Employees
(Full Title of the Plans)
Clifton S. Rankin
General Counsel and Corporate Secretary
4171 Essen Lane
Baton Rouge, Louisiana 70809
(225) 932-2500
(Name, address and telephone number, including area code, of agent for service)
Copies to:
J. Michael Robinson, Jr.
Kantrow, Spaht, Weaver & Blitzer
(A Professional Law Corporation)
P.O. Box 2997
Baton Rouge, LA 70821-2997
(225) 383-4703
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer
þ
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Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting
company)
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Smaller reporting company
o
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CALCULATION OF REGISTRATION FEE
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Proposed maximum
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Proposed maximum
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Title of securities
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Amount to be
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offering price per
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aggregate offering
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Amount of
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to be registered
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registered(1)
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share(2)
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price(3)
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registration fee(2)
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Common Stock, no
par
value per share
(3) (4)
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1,200,000
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$
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23.86
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$
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28,632,000
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$
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1,597.67
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(1)
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The number of shares of common stock, no par value being registered hereby pursuant to (i)
The Shaw Group Inc. 401(k) Plan; and (ii) The Shaw Group Inc. 401(k) Plan for Certain Hourly
Employees is subject to adjustment to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
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(2)
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Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(h)
promulgated under the Securities Act of 1933, as amended, based upon the average of the high
and low sales prices for a share of common stock reported on the New York Stock Exchange on
July 10, 2009, which was $23.86.
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(3)
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Includes preferred share purchase rights. Until the occurrence of certain prescribed events,
none of which has occurred, the preferred share purchase rights are not exercisable, are
evidenced by certificates representing shares of the common stock, and will be transferred
only with shares of the common stock. The value, if any attributable to the rights is
included in the market price of the common stock.
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(4)
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Pursuant to Rule 416(c) promulgated under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plans described herein.
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TABLE OF CONTENTS
REGISTRATION OF ADDITIONAL SECURITIES
INCORPORATION OF EARLIER REGISTRATION STATEMENT BY REFERENCE
Pursuant to General Instruction E to Form S-8, The Shaw Group Inc. (the
Company
)
hereby incorporates by reference into this Registration Statement the contents of the Form S-8
Registration Statement filed on behalf of the Company with the Securities and Exchange Commission
on May 4, 2004 (File No. 333-115155), except to the extent otherwise updated or modified by this
Registration Statement. This Registration Statement registers (i) an additional 1,200,000 shares
of the Companys common stock, no par value per share; and (ii) an indeterminate amount of
interests to be offered or sold under The Shaw Group Inc. 401(k) Plan and The Shaw Group Inc.
401(k) Plan for Certain Hourly Employees (together the
Plans
).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this Registration Statement:
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The Annual Report on Form 10-K of The Shaw Group
Inc. (the
Company
) for the year ended August 31, 2008, filed with the
Securities and Exchange Commission (the
SEC
) on October 31, 2008. The audit
report of KPMG LLP included in the 2008 Annual Report on Form 10-K of The Shaw Group
Inc. on the effectiveness of internal control over financial reporting as of August 31,
2008, expresses an opinion that The Shaw Group Inc. and subsidiaries did not maintain
effective internal controls over financial reporting as of August 31, 2008 because of
the effect of material weaknesses on the achievement of the objectives of the control
criteria and contains a statement that material weaknesses in project reporting of
estimates of cost at completion on engineering, procurement, and construction on
complex fixed-price contracts and accounting for income taxes have been identified and
are included in managements assessment in Item 9A(b) of the 2008 Annual Report on Form
10-K.
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The Companys Quarterly Report on Form 10-Q for the quarter ended May 31, 2009,
filed with the SEC on July 9, 2009, Quarterly Report on Form 10-Q for the quarter ended
February 28, 2009, filed with the SEC on April 9, 2009 and Quarterly Report on Form
10-Q for the quarter ended November 30, 2008, filed with the SEC on January 8, 2009.
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The Companys Current Report on Form 8-K dated April 22, 2009, filed with the SEC on
April 27, 2009, Current Report on Form 8-K dated April 8, 2009, filed with the SEC on
April 8, 2009, Current Report on Form 8-K dated February 2, 2009, filed with the SEC on
February 2, 2009, as amended by Current Report on Form 8-K/A filed with the SEC on June
8, 2009, Current Report on Form 8-K dated January 8, 2009, filed with the SEC on
January 8, 2009, Current Report on Form 8-K dated January 6, 2009, filed with the SEC
on January 7, 2009, Current Report on Form 8-K dated January 6, 2009, filed with the
SEC on January 6, 2009, and Current Report on Form 8-K dated December 24, 2008, filed
with the SEC on December 24, 2008.
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The Companys proxy statement for its 2009 Annual Meeting of Shareholders filed with
the SEC on December 24, 2008.
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The Annual Reports on Form 11-K for each of the Plans as filed with the SEC on June
29, 2009.
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In addition, all reports and definitive proxy or information statements filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, (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 in this
Registration Statement and to be a part hereof from the date of filing of such documents. Unless
expressly incorporated into this Registration Statement, a report furnished but not filed on Form
8-K under the Exchange Act shall not be incorporated by reference into this Registration Statement.
Any statement contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superceded for purposes of this Registration
Statement to the extent that a statement contained in any subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed, except as so modified
or superceded, to constitute a part of this Registration Statement.
II-1
Item 8. Exhibits.
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SEC File or
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Exhibit
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Exhibit
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Registration
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Or Other
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Number
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Document Description
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Report or Registration Statement
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Number
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Reference
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5.1
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The shares of
Common Stock
offered and sold
pursuant to the
Plans are purchased
by the
administrator of
the Plans in open
market
transactions.
Because no original
issuance securities
will be offered or
sold pursuant to
the Plans, no
opinion of counsel
regarding the
legality of the
securities being
registered
hereunder is
required.
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Pursuant to Item
8(b) of Form S-8,
the Company has
submitted the Plans
to the Internal
Revenue Service
(IRS) for a
determination
letter that the
Plans are qualified
under Section 401
of the Internal
Revenue Code of
1986 and will make
all changes
required by the IRS
in order to qualify
the Plans.
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23.2
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Consent of KPMG
LLP, independent
registered public
accounting firm of
The Shaw Group Inc.
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23.3
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Consent of Ernst &
Young LLP, former
independent
registered public
accounting firm of
The Shaw Group Inc.
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23.4
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Consent of Ernst &
Young LLP,
independent
registered public
accounting firm of
Toshiba Nuclear
Energy Holdings
(US), Inc. and
Toshiba Nuclear
Energy Holdings
(UK), Ltd.
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23.5
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Consent of Hannis
T. Bourgeois, LLP,
independent
registered public
accounting firm of
The Shaw Group Inc.
401(k) Plan and The
Shaw Group Inc.
401(k) Plan for
Certain Hourly
Employees
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24.1
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Power of Attorney (included as part of signature page to this Registration Statement)
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Item 9. Undertakings.
(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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(ii)
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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
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II-2
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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 Securities and Exchange 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; and
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(iii)
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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;
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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 with or furnished to the Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
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(2)
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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.
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(3)
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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.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plans annual report pursuant to 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.
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(c)
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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 Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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II-3
SIGNATURES
The Registrant.
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Baton Rouge, State of
Louisiana, as of this 13
th
day of July, 2009.
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THE SHAW GROUP INC.
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By:
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/s/ Clifton S. Rankin
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Clifton S. Rankin
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General Counsel and Corporate Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints J.M. Bernhard, Jr. and Brian K. Ferraioli, and each of them, as his true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution, for the
undersigned and in his name, place and stead, in any and all capacities, to sign and file (i) any
and all amendments (including post-effective amendments) to this Registration Statement and to file
the same, with all exhibits thereto, and all documents in connection therewith; and (ii) a
Registration Statement, and any and all amendments thereto, relating to the offering covered hereby
filed pursuant to Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange
Commission, 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 connection therewith, as
fully to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either 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, as amended, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities indicated on this
13
th
day of July, 2009.
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Name and Signature
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Title
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/s/ J.M. BERNHARD, JR.
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Chairman of the Board, Chief Executive Officer and President
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J.M. Bernhard, Jr.
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(
Principal Executive Officer
)
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/s/ BRIAN K. FERRAIOLI
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Executive Vice President and Chief Financial Officer (
Principal
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Brian K. Ferraioli
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Financial Officer
)
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/s/ MICHAEL J. KERSHAW
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Senior Vice President and Chief Accounting Officer (
Principal
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Michael J. Kershaw
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Accounting Officer
)
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/s/ ALBERT D. MCALISTER
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Director
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Albert D. McAlister
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/s/ DAVID W. HOYLE
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Director
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David W. Hoyle
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/s/ JAMES F. BARKER
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Director
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James F. Barker
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/s/ DANIEL A. HOFFLER
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Director
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Daniel A. Hoffler
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II-4
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Name and Signature
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Title
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/s/ MICHAEL J. MANCUSO
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Director
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Michael J. Mancuso
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/s/ THOS E. CAPPS
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Director
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Thos E. Capps
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/s/ STEPHEN R. TRITCH
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Director
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Stephen R. Tritch
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The Plans
. Pursuant to the requirements of the Securities Act of 1933, as amended, the
trustees (or other persons who administer the Plans) have duly caused this Registration Statement
to be signed on their behalf by the undersigned, thereunto duly authorized, in the City of Baton
Rouge, State of Louisiana, on this
13
th
day of July, 2009.
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THE SHAW GROUP INC. 401(k) PLAN FOR CERTAIN
HOURLY EMPLOYEES
THE SHAW GROUP INC. 401(k) PLAN
By: THE SHAW GROUP INC., PLAN ADMINISTRATOR FOR EACH
OF THE SHAW GROUP INC. 401(k) PLAN AND THE SHAW GROUP INC.
401(k) PLAN FOR CERTAIN HOURLY EMPLOYEES
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By:
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/s/ Clifton S. Rankin
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Name:
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Clifton S. Rankin
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Title:
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General Counsel and Corporate Secretary
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II-5
EXHIBIT INDEX
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SEC File or
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Exhibit
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Exhibit
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Registration
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Or Other
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Number
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Document Description
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Report or Registration Statement
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Number
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Reference
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5.1
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The shares of
Common Stock
offered and sold
pursuant to the
Plans are purchased
by the
administrator of
the Plans in open
market
transactions.
Because no original
issuance securities
will be offered or
sold pursuant to
the Plans, no
opinion of counsel
regarding the
legality of the
securities being
registered
hereunder is
required.
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Pursuant to Item
8(b) of Form S-8,
the Company has
submitted the Plans
to the Internal
Revenue Service
(IRS) for a
determination
letter that the
Plans are qualified
under Section 401
of the Internal
Revenue Code of
1986 and will make
all changes
required by the IRS
in order to qualify
the Plans.
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23.2
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Consent of KPMG LLP
independent
registered public
accounting firm of
The Shaw Group Inc.
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23.3
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Consent of Ernst &
Young LLP former
independent
registered public
accounting firm of
The Shaw Group Inc.
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23.4
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Consent of Ernst &
Young LLP
independent
registered public
accounting firm of
Toshiba Nuclear
Energy Holdings
(US), Inc. and
Toshiba Nuclear
Energy Holdings
(UK), Ltd.
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23.5
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Consent of Hannis
T. Bourgeois, LLP,
independent
registered public
accounting firm of
The Shaw Group Inc.
401(k) Plan and The
Shaw Group Inc.
401(k) Plan for
Certain Hourly
Employees
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24.1
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Power of Attorney (included as part of signature page to this Registration Statement)
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II-6
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