-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HUogeJtje0k/ce9k6jxpactKdX9pr3/JyTAS3GIYhX6LPAtCcnw4NrOCVJWwlTOs lzaB6XPcmEsrTO3MJBLg0Q== 0000033073-95-000012.txt : 19951108 0000033073-95-000012.hdr.sgml : 19951108 ACCESSION NUMBER: 0000033073-95-000012 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19951107 EFFECTIVENESS DATE: 19951126 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENVIRODYNE INDUSTRIES INC CENTRAL INDEX KEY: 0000033073 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 952677354 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64025 FILM NUMBER: 95587769 BUSINESS ADDRESS: STREET 1: 701 HARGER ROAD STE 1190 CITY: OAK BROOK STATE: IL ZIP: 60521 BUSINESS PHONE: 7085718800 FORMER COMPANY: FORMER CONFORMED NAME: MGN INC DATE OF NAME CHANGE: 19790425 S-8 1 S-8 EDYN '93 STOCK OPT PLAN, AMENDED As filed with the Securities and Exchange Commission on October 30, 1995 Registration No. 33-_____ ================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 --------------------- ENVIRODYNE INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Delaware 95-2677354 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) Envirodyne Industries, Inc. 701 Harger Road, Suite 190 Oak Brook, Illinois 60521 (708) 571-8800 (Address of Principal Executive Offices) Envirodyne Industries, Inc. 1993 Stock Option Plan (As Amended and Restated) (Full title of the plan) STEPHEN M. SCHUSTER Vice President, Secretary and General Counsel Envirodyne Industries, Inc. 701 Harger Road, Suite 190 Oak Brook, Illinois 60521 (708) 571-8800 (Name, address and telephone number, including area code, of agent for service) Copy to: Gary D. Gerstman Sidley & Austin One First National Plaza Chicago, Illinois 60603 (312) 853-2060 CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------- Proposed Proposed Title of securities Amount to be maximum offering maximum aggregate Amount of of to be registered registered price per share offering price registration fee - ---------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 650,000 shares $4.375 (1) $2,843,750 (1) $980.60
============================================================ (1) Estimated solely for the purpose of calculating the registration fee and, pursuant to Rules 457(h)(1) and 457(c) under the Securities Act of 1933, based upon the average of the high and low sale prices of the Common Stock of Envirodyne Industries, Inc. on The Nasdaq Stock Market on October 25, 1995. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference ----------------------------------------------- The following documents heretofore filed with the Securities and Exchange Commission (the "Commission") by Envirodyne Industries, Inc. (the "Company") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 29, 1994. (b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 29, 1994. (c) The description of the Company's common stock, par value $.01 per share (the "Common Stock"), which is contained in the Registration Statement on Form 8-A filed with the Commission on November 12, 1993 under the Exchange Act, including any subsequent amendment or any report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement 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 into this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"). Item 4. Description of Securities ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel -------------------------------------- Mr. Stephen M. Schuster, Vice President, Secretary and General Counsel of the Company, beneficially owns 39,944 shares of Common Stock of the Company (which includes options to purchase 22,850 shares and 2,000 shares owned by Mr. Schuster's spouse). Item 6. Indemnification of Directors and Officers ----------------------------------------- The Company's Amended and Restated Certificate of Incorporation, as amended, provides that, in accordance with Section 102(b)(7) of the General Corporation Law of the State of Delaware (the "DGCL"), a director of the Company will 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) unlawful payment so of dividends under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. It further provides that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company will be eliminated or limited to the fullest extent permitted by the DGCL as so amended. The Company's Amended and Restated Certificate of Incorporation, as amended, provides indemnification for directors or officers to the fullest extent permitted by the DGCL. The Company's By-laws permit the Company to insure its directors, officers, employees or agents against certain liabilities without regard to whether they may be indemnified under Delaware law. Reference is made to Section 145 of the DGCL which provides for indemnification of directors and officers in certain circumstances. Section 145 of the DGCL permits the indemnification by a Delaware corporation of its directors, officers, employees and other agents against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than derivative actions which are by or in the right of the corporation) if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was illegal. A similar standard of care is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with defense or settlement of such an action and court approval is required before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action referred to above or in defense of any claim, issue or matter therein, such representative shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred in connection therewith. Item 7. Exemption from Registration Claimed ----------------------------------- Not applicable. Item 8. Exhibits -------- The Exhibits accompanying this Registration Statement are listed on the accompanying Exhibit Index. 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 this 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 this Registration Statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and -------- ------- (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and 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 Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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 (and, where applicable, each filing of an employee benefit plan's 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. ---- ---- (c) 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. SIGNATURES The Registrant. 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 Village of Oak Brook, State of Illinois, on this 30th day of October, 1995. ENVIRODYNE INDUSTRIES, INC. By: /s/ -------------------------- Donald P. Kelly, Chairman of the Board, President, Chief Executive Officer and Director Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on this 30th day of October, 1995. Each person whose signature appears below hereby appoints Stephen M. Schuster his or her true and lawful attorney-in-fact, with power to act with or without the other and with full power of substitution and resubstitution, in any and all capacities, to sign any or all amendments (including post-effective 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 full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, 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 their substitutes, may lawfully do or cause to be done by virtue thereof. Signature and Title Signature and Title ------------------- ------------------- /s/ /s/ - ---------------------------- --------------------------- Donald P. Kelly F. Edward Gustafson Chairman of the Board, President, Director Chief Executive Officer and Director (Principal Executive Officer) /s/ - ---------------------------- --------------------------- J.S. Corcoran Michael E. Heisley Executive Vice President and Director Chief Financial Officer (Principal Financial and Accounting Officer) /s/ /s/ - ---------------------------- --------------------------- Robert N. Dangremond Gregory R. Page Director Director /s/ - ---------------------------- --------------------------- Avram A. Glazer Mark D. Senkpiel Director Director /s/ - ---------------------------- Malcolm I. Glazer Director INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8 ------------------------------------------------------- Exhibit Description of Exhibit - -------- -------------------------------------------- 4.1 Amended and Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 to Form 8-K (File No. 0-5485) filed under the Exchange Act). 4.2 Bylaws of the Company (incorporated herein by reference to Exhibit 3.1 to Form 8-K (File No. 0-5485) filed under the Exchange Act). 4.3 Envirodyne Industries, Inc. 1993 Stock Option Plan (As Amended and Restated) (incorporated herein by reference to Appendix A to the Proxy Statement dated April 7, 1995 for the 1995 Annual Meeting of the Stockholders (File No. 0-5485) filed under the Exchange Act). *5 Opinion of Stephen M. Schuster, Esq. *23.1 Consent of Stephen M. Schuster, Esq. (included in Exhibit 5). *23.2 Consent of Coopers & Lybrand L.L.P. *24.1 Powers of Attorney (reference is made to the Signatures section of this Registration Statement for the Power of Attorney contained therein.) - ------------------------ * Filed herewith. EX-5 2 OPINION OF S.M. SCHUSTER, ESQ. EXHIBIT 5 ENVIRODYNE INDUSTRIES, INC. 701 Harger Road Oak Brook, Illinois 60521 October 30, 1995 Envirodyne Industries, Inc. 701 Harger Road, Suite 190 Oak Brook, IL 60521 Re: Envirodyne Industries, Inc. 650,000 Shares of Common Stock, par value $.01 per share ---------------------------------------------- This opinion of counsel is provided in my capacity as General Counsel of Envirodyne Industries, Inc. ("Envirodyne"), a Delaware corporation. I refer to the Registration Statement on Form S-8 (the "Registration Statement") being filed by Envirodyne with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to the registration of 650,000 shares of Common Stock, par value $.01 per share (the "Shares"), of Envirodyne in connection with the Envirodyne Industries, Inc. 1993 Stock Option Plan (the "Plan"). I am familiar with the proceedings to date with respect to the proposed issuance and sale of the Shares and have examined such records, documents and questions of law, and satisfied myself as to such matters of fact, as I have considered relevant and necessary as a basis for this opinion. Based on the foregoing, I am of the opinion that: 1. Envirodyne is duly incorporated and validly existing under the laws of the State of Delaware. 2. The Shares will be, as and when acquired in accordance with the terms and conditions of the Plan, legally issued, fully paid and nonassessable The opinion is limited to the General Corporation Law of the State of Delaware and the laws of the United States of America. I do not find it necessary for the purposes of this opinion to cover, and accordingly I express no opinion as to, the application of the securities or blue sky laws of the various states to the issuance and sale of the Shares. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to all references to myself included in or made a part of the Registration Statement. Sincerely yours, Stephen M. Schuster Vice President, Secretary and General Counsel SMS/as EX-23.2 3 CONSENT OF COOPERS & LYBRAND EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS COOPERS & LYBRAND L.L.P. We consent to the inclusion in this registration statement on Form S-8 (File No. ) of our report dated March 15, ------------- 1995, except for Note 21, as to which the date is July 19, 1995, on our audits of the consolidated financial statements and the financial statement schedules of Envirodyne Industries, Inc. and Subsidiaries. COOPERS & LYBRAND L.L.P. Chicago, Illinois October 30, 1995 -----END PRIVACY-ENHANCED MESSAGE-----