As filed
with the Securities and Exchange Commission on April 22, 2005
Registration
No.____________
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SMITH-MIDLAND
CORPORATION
(Exact
name of registrant as specified in its charter)
|
DELAWARE |
54-1727060 |
|
(State or other jurisdiction
of |
(I.R.S. Employer |
|
incorporation or
organization) |
Identification
No.) |
|
P.O. BOX 300, 5119 CATLETT ROAD, MIDLAND,
VIRGINIA |
22728 |
|
(Address of principal executive
offices) |
(Zip Code) |
SMITH-MIDLAND
CORPORATION 2004 STOCK OPTION PLAN
(Full
title of the Plan)
RODNEY I.
SMITH, PRESIDENT
SMITH-MIDLAND
CORPORATION
P.O. BOX
300, 5119 CATLETT ROAD
MIDLAND,
VIRGINIA 22728
(Name and
address of agent for service)
(540)
439-3266
(Telephone
number, including area code, of agent for service)
copy
to:
GARY T.
MOOMJIAN, ESQ.
MOOMJIAN
& WAITE, LLP
100
JERICHO QUADRANGLE
SUITE
225
JERICHO,
NY 11753
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
To
be Registered |
Amount
to be registered (1) |
Proposed
maximum
offering
price
per
share (2)(3) |
Proposed
maximum
aggregate
offering
price (2)(3) |
Amount
of
registration
fee |
|
Common
Stock, par value $.01 |
500,000 |
.86 |
$430,000
(3) |
50.62 |
(1)
Represents the shares of common stock, par value $.01 per share (“Common
Stock”), issuable pursuant to the Smith-Midland Corporation 2004 Stock Option
Plan. Pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), there are also being registered such
indeterminable number of additional shares of Common Stock as may become
issuable pursuant to anti-dilution provisions contained in such
plan.
(2)
Estimated solely for the purpose of calculating the registration
fee.
(3)
Computed in accordance with Rule 457(h) and 457(c), based upon the average of
the high and low prices for the Common Stock reported on the OTC Bulletin Board
on April 18, 2005.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I will be sent or given
to "employees" (as such term is defined in paragraph 1(a) of General
Instructions A to Form S-8) as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
Smith-Midland
Corporation (the "Registrant") hereby incorporates by reference the documents
listed below previously filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"):
1. The
Registrant's Annual Report on Form 10-KSB for the year ended December 31,
2004.
2. The
description of the Common Stock contained in the Registrant's Registration
Statement on Form 8-A, including any amendment(s) or report(s) filed for the
purpose of updating such description.
In
addition, all documents and reports subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all such 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. Any statement contained herein or 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 or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as modified or superseded.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification
of Directors and Officers.
The
Registrant's Certificate of Incorporation, as amended to date, eliminates, in
certain circumstances, the personal liability of directors of the Registrant for
monetary damages resulting from breaches of their fiduciary duties as directors
except, pursuant to the limitations of the Delaware General Corporation Law, (i)
for any breach of a director's duty of loyalty to the Registrant 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 any amendatory or successor provisions thereto, or (iv) with respect to
any transaction from which a director derived an improper personal benefit. The
Registrant's By-Laws provide indemnification to directors, officers, employees,
and agents, including against claims brought under state or Federal securities
laws, to the fullest extent allowable under Delaware law.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Set forth
below are all exhibits to the Registration Statement:
| Exhibit
Number |
Description |
| 5.1 |
Opinion
of Moomjian & Waite, LLP. |
| 10.1 |
Smith-Midland
Corporation 2004 Stock Option Plan (Incorporated by reference to the
Company’s Annual Report on Form 10-KSB for the year ended December 31,
2004). |
| 23.1 |
Consent
of BDO Seidman, LLP. |
| 23.2 |
Consent
of Moomjian & Waite, LLP (included in legal opinion filed as Exhibit
5.1). |
Item
9. Undertakings.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions, or otherwise, the small business
issuer 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 and is, therefore, unenforceable.
In the
event that a claim for indemnification against such liabilities (other than the
payment by the small business issuer of expenses incurred or paid by a director,
officer or controlling person of the small business issuer 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
small business issuer 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
The
undersigned small business issuer will:
(1) File,
during any period in which it offers or sells securities, a post-effective
amendment to this registration statement to:
(i)
Include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii)
Reflect in the prospectus any facts or events which, individually or together,
represent a fundamental change in the information 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 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii)
Include any additional or changed material information on the plan of
distribution.
(2) For
determining liability under the Securities Act, treat each post-effective
amendment as a new registration statement of the securities offered, and the
offering of the securities at that time to be the initial bona fide
offering.
(3) File
a post-effective amendment to remove from registration any of the securities
that remain unsold at the end of the offering.
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
Midland, State of Virginia, on this 22 day of April, 2005.
SMITH-MIDLAND
CORPORATION
By:/s/
Rodney I. Smith
Rodney I.
Smith
President
and Chief Executive Officer
(principal
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.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
|
/s/
Rodney I. Smith |
|
Director,
President |
|
April
22, 2005 |
|
-------------------------------- |
|
and
Chief Executive |
|
|
|
Rodney
I. Smith |
|
Officer
(Principal |
|
|
| |
|
Executive
Officer) |
|
|
| |
|
|
|
|
|
/s/
Lawrence R. Crews |
|
Chief
Financial Officer |
|
April
22, 2005 |
|
------------------------------- |
|
(Principal
Financial and |
|
|
|
Lawrence
R. Crews |
|
Accounting
Officer) |
|
|
| |
|
|
|
|
| |
|
|
|
|
|
/s/
Ashley B. Smith |
|
Director |
|
April
22, 2005 |
|
-------------------------------- |
|
|
|
|
|
Ashley
B. Smith |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
|
/s/
Wesley A. Taylor |
|
Director |
|
April
22, 2005 |
|
-------------------------------- |
|
|
|
|
|
Wesley
A. Taylor |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
|
/s/
Andrew Kavounis |
|
Director |
|
April
22, 2005 |
|
-------------------------------- |
|
|
|
|
|
Andrew
Kavounis |
|
|
|
|
EXHIBIT
INDEX
| Exhibit
Number |
Description |
| 5.1 |
Opinion
of Moomjian & Waite, LLP. |
| 10.1 |
Smith-Midland
Corporation 2004 Stock Option Plan (Incorporated by reference to the
Company’s Annual Report on Form 10-KSB for the year ended December 31,
2004). |
| 23.1 |
Consent
of BDO Seidman, LLP. |
| 23.2 |
Consent
of Moomjian & Waite, LLP (included in legal opinion filed as Exhibit
5.1). |