<PAGE> 1
As filed with the Securities and Exchange Commission on December 11, 1997
Registration No.
---------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
MPW INDUSTRIAL SERVICES GROUP, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
Ohio 34-1567260
- ---------------------------------------- ---------------------------------------
(State of Incorporation or Organization) (I.R.S. Employer Identification Number)
9711 Lancaster Road, S.E., Hebron, Ohio 43025
- ---------------------------------------- ---------------------------------------
(Address of Principal Executive Office) (Zip Code)
</TABLE>
MPW INDUSTRIAL SERVICES GROUP, INC.
1991 STOCK OPTION PLAN
1994 STOCK OPTION PLAN
1997 STOCK OPTION PLAN
- --------------------------------------------------------------------------------
(Full Title of the Plans)
DANIEL P. BUETTIN
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
MPW Industrial Services Group, Inc.
9711 Lancaster Road, S.E.
Hebron, Ohio 43025
(614) 927-8790
- --------------------------------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED AMOUNT TO BE REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE (1)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,679,000 $9.325 $15,656,675 $4,619
no par value
=========================================================================================================================
</TABLE>
(1) Calculated in accordance with Rules 457(h)(1) and 457(c), based on the
average of the high and low sales prices reported on the Nasdaq National
Market System on December 5, 1997.
<PAGE> 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by MPW Industrial Services Group, Inc.
(the "Company") with the Securities and Exchange Commission are incorporated in
this Registration Statement by reference.
(a) Prospectus, dated December 2, 1997, forming a part of
Registration Statement on Form S-1 (Reg. No.
333-36887).
(b) Description of the Common Stock of the Company
contained in the Registration Statement on Form 8-A
filed on November 7, 1997 (File No. 0-23335).
All documents filed by the Company pursuant to Sections 13, 14 or 15(d)
of the Securities Exchange Act of 1934 subsequent to the date of this
Registration Statement and 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 this Registration Statement and to be a part thereof from the date
of filing of such documents.
Any statement made in a 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 is also
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities offered pursuant to this Registration
Statement have been passed upon by Jones, Day, Reavis & Pogue, Columbus, Ohio.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Division (E) of Section 1701.13 of the Ohio General Corporation Law
governs indemnification by a corporation and provides as follows:
(E) (1) A corporation may indemnify or agree to indemnify any
person 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, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust or
other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if
he had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, he had reasonable cause
to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person 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 he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's
-2-
<PAGE> 3
fees, actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall
be made in respect of any of the following:
(a) Any claim, issue, or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that, the court of common pleas or the
court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened by the action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders; or
(d) By the court of common pleas or the court in
which such action, suit, or proceeding referred to in division
(E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under division
(E)(4)(a) or by independent legal counsel under division (E)(4)(b) of this
section shall be promptly communicated to the person who threatened or brought
the action or suit by or in the right of the corporation under division (E)(2)
of this section, and, within ten days after receipt of such notification, such
person shall have the right to petition the court of common pleas or the court
in which such action or suit was brought to review the reasonableness of such
determination.
(5) (a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific reference to this division, that
the provisions of this division do not apply to the corporation and
unless the only liability asserted against a director in an action,
suit, or proceeding referred to in division (E)(1) or (2) of this
section is pursuant to section 1701.95 of the Revised Code, expenses,
including attorney's fees, incurred by a director in defending the
action, suit, or proceeding shall be paid by the corporation as they
are incurred, in advance of the final disposition of the action, suit,
or proceeding, upon receipt of an undertaking by or on behalf of the
director in which he agrees to both of the following:
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<PAGE> 4
(i) Repay such amount if it is proved by
clear and convincing evidence in a court of competent
jurisdiction that his action or failure to act
involved an act or omission undertaken with
deliberate intent to cause injury to the corporation
or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the
corporation concerning the action, suit, or
proceeding.
(b) Expenses, including attorney's fees, incurred by
a director, trustee, officer, employee, member, manager, or
agent in defending any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized
by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if
it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has
a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7) .
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger and the
new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager, or agent of such
a constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
Section 29 of the Company's Code of Regulations governs indemnification
by the Company and provides as follows:
29. INDEMNIFICATION. The Corporation shall indemnify, to the
full extent then permitted by law, any person 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, by reason of the fact that he is or
was a member of the Board of Directors or an officer of the
Corporation, or is or was serving at the request of the Corporation as
a director, trustee, officer, employee or agent of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise. The Corporation shall pay, to the full extent then required
by law, expenses, including attorney's fees, incurred by a member of
the Board of Directors in defending any such action, suit or proceeding
as they are incurred, in advance of the final disposition thereof, and
may pay, in the same manner
-4-
<PAGE> 5
and to the full extent then permitted by law, such expenses incurred by
any other person. The indemnification and payment of expenses provided
hereby shall not be exclusive of, and shall be in addition to, any
other rights granted to those seeking indemnification under any law,
the Articles of Incorporation, any agreement, vote of shareholders or
disinterested members of the Board of Directors, or otherwise, both as
to action in official capacities and as to action in another capacity
while he or she is a member of the Board of Directors or an officer of
the Corporation, and shall continue as to a person who has ceased to be
a member of the Board of Directors or an officer of the Corporation or
as to a person who has served at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation,
and shall inure to the benefit of the heirs, executors, and
administrators of such persons.
Reference is also made to Section 10 of the Underwriting Agreement
contained in Exhibit 1 to Company's Registration Statement on Form S-1 (Reg. No.
333-36887), indemnifying directors and officers of the Company against certain
liabilities.
In addition, the Company intends to purchase insurance coverage that
will insure directors and officers against certain liabilities that might be
incurred by them in such capacity.
The Company has also entered into indemnification and severance
agreements with certain directors and executive officers.
EXHIBITS
4(a) Amended and Restated Articles of Incorporation of the Company.
[Incorporated by reference to Exhibit 3(a) to the Form S-1 of the
Company (Reg. No. 333-36887) (the "Registration Statement").]
4(b) Amended and Restated Code of Regulations of the Company. [Incorporated
by reference to Exhibit 3(b) to the Registration Statement.]
5 Legal Opinion of Jones, Day, Reavis & Pogue as to the legality of the
securities being registered.
23(a) Consent of Ernst & Young
23(b) Consent of Jones, Day, Reavis & Pogue (set forth in the opinion filed
as Exhibit 5 to this Registration Statement).
24 Power of Attorney of certain directors and executive officers of the
Company.
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. 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
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<PAGE> 6
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; 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 (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 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 (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 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
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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<PAGE> 7
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Hebron, State of Ohio, on the 11th day of
December, 1997.
MPW INDUSTRIAL SERVICES GROUP, INC.
By: /s/ Daniel P. Buettin
----------------------------------------
Daniel P. Buettin
Vice President, Chief Financial Officer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on December 11, 1997.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* Chief Executive Officer and Chairman of the Board of
- ----------------------------- Directors (Principal Executive Officer)
Monte R. Black
* President and Chief Operating Officer; Director
- -----------------------------
Ira O. Kane
* Vice President, Chief Financial Officer and Secretary
- ----------------------------- (Principal Financial and Officer)
Daniel P. Buettin
* Corporate Controller, Treasurer and Assistant Secretary
- ----------------------------- (Principal Accounting Officer)
Brad A. Martyn
* Director
- -----------------------------
Robert E. Oyster
* Director
- -----------------------------
Timothy A. Walsh
* Director
- -----------------------------
Scott N. Whitlock
</TABLE>
* The undersigned, pursuant to certain Powers of Attorney executed by each of
the directors and officers noted above and previously filed or filed herewith
contemporaneously with the Securities and Exchange Commission, by signing his
name hereto, does hereby sign and execute this Registration Statement on Form
S-8 on behalf of each of the persons noted above, in the capacities indicated.
Dated: December 11, 1997 By: /s/ Daniel P. Buettin
---------------------------------
Daniel P. Buettin
Attorney-in-Fact
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<PAGE> 8
EXHIBIT INDEX
4(a) Amended and Restated Articles of Incorporation of the Company.
[Incorporated by reference to Exhibit 3(a) to the Form S-1 of the
Company (Reg. No. 333-36887) (the "Registration Statement").]
4(b) Amended and Restated Code of Regulations of the Company. [Incorporated
by reference to Exhibit 3(b) to the Registration Statement.]
5 Legal Opinion of Jones, Day, Reavis & Pogue as to the legality of the
securities being registered.
23(a) Consent of Ernst & Young
23(b) Consent of Jones, Day, Reavis & Pogue (set forth in the opinion filed
as Exhibit 5 to this Registration Statement).
24 Power of Attorney of certain directors and executive officers of the
Company.
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<PAGE> 1
EXHIBIT 5
December 11, 1997
MPW Industrial Services Group, Inc.
9711 Lancaster Road, S.E.
Hebron, Ohio 43025
Re: Form S-8 Registration Statement
-------------------------------
Gentlemen:
We have acted as counsel for MPW Industrial Services Group, Inc. ("the
Company") in connection with the registration under the Securities Act of 1933
on a Form S-8 Registration Statement (the "Form S-8") of Common Stock of the
Company to be issued pursuant to the Company's 1997, 1994 and 1991 Stock Option
Plans (the "Plans"). We have examined such documents, records and matters of law
as we have deemed necessary for purposes of this opinion and, based thereon, we
are of the opinion that shares of Common Stock that may be issued pursuant to
the Plans will be, when issued in accordance with the Plans and the related
authorized forms of stock option agreements, including the payment of the
applicable exercise price, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Form S-8 being filed by the Company.
Very truly yours,
JONES, DAY, REAVIS & POGUE
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the MPW Industrial Services Group, Inc. 1997, 1994 and
1991 Stock Option Plans of our report dated September 30, 1997 (except for Note
14 as to which the date is December 2, 1997), with respect to the consolidated
financial statements and schedule of MPW Industrial Services Group, Inc.
included in Registration Statement on Form S-1 (Reg. No. 333-36887) filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Columbus, Ohio
December 11, 1997
<PAGE> 1
EXHIBIT 24
MPW INDUSTRIAL SERVICES GROUP, INC.
REGISTRATION STATEMENT ON FORM S-8
POWER OF ATTORNEY
- --------------------------------------------------------------------------------
The undersigned officer and/or director of MPW Industrial Services
Group, Inc., an Ohio corporation (the "Company"), does hereby make, constitute
and appoint Daniel P. Buettin and Brad A. Martyn, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney of the
undersigned, to execute and file, under the Securities Act of 1933, a
Registration Statement on Form S-8 relating to registration of Common Stock, no
par value, of the Company issuable upon the exercise of stock options granted or
to be granted under the Company's 1997, 1994 and 1991 Stock Option Plans, and
any and all amendments or exhibits thereto, and any or all applications or other
documents to be filed with the Securities and Exchange Commission pertaining to
such registration, with full power and authority to do and perform any and all
acts and things whatsoever necessary, appropriate or desirable to be done in the
premises, or in the name, place and stead of the said director, hereby ratifying
and approving the acts of said attorneys and any of them and any such
substitute.
IN WITNESS WHEREOF, the undersigned has subscribed these presents as of
the 5th day of December, 1997.
/s/ MONTE R. BLACK
- -----------------------------------------------------
Monte R. Black
Chief Executive Officer and Chairman of the Board of
Directors (Principal Executive Officer)
/s/ IRA O. KANE
- -----------------------------------------------------
Ira O. Kane
President and Chief Operating Officer; Director
/s/ DANIEL P. BUETTIN
- -----------------------------------------------------
Daniel P. Buettin
Vice President, Chief Financial Officer and Secretary
(Principal Financial and Officer)
/s/ BRAD A. MARTYN
- -----------------------------------------------------
Brad A. Martyn
Corporate Controller, Treasurer and Assistant
Secretary (Principal Accounting Officer)
/s/ ROBERT E. OYSTER
- -----------------------------------------------------
Robert E. Oyster
Director
/s/ TIMOTHY A. WALSH
- -----------------------------------------------------
Timothy A. Walsh
Director
/s/ SCOTT N. WHITLOCK
- -----------------------------------------------------
Scott N. Whitlock
Director
