As filed with the Securities and Exchange Commission on August 3, 2000
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
ENVIROSOURCE, INC.
(Exact name of registrant as specified in its charter)
Delaware 34-0617390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1155 Business Center Drive, Horsham, Pennsylvania 19044-3454
(Address of principal executive offices, including zip code)
ENVIROSOURCE, INC. 1999 STOCK OPTION PLAN
(Full title of the Plan)
Leon Z. Heller, Esq.
ENVIROSOURCE, INC.
1155 Business Center Drive
Horsham, Pennsylvania 19044-3454
(215) 956-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount To Offering Price Aggregate Amount Of
To Be Registered Be Registered Per Share(1) Offering Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value 500,000 Shares(2) $.25 $125,000 $33.00
$0.05 per share
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1 Estimated for the sole purpose of computing the registration fee. Pursuant
to Rule 457(c), the stated price represents the average of the high and low
prices of the registrant's Common Stock in composite trading on July 28,
2000.
2 Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement also covers such additional indeterminate number of shares of
Common Stock or other securities as may become issuable upon exercise of
purchase rights or otherwise by reason of adjustments pursuant to the
anti-dilution provisions of the Envirosource, Inc. 1999 Stock Option Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the note to Part I of Form S-8 and Rule 428(b)(1) of the
Securities Act of 1933, as amended ("Securities Act") and the regulations
thereunder, the document or documents containing the information specified in
Part I of Form S-8 are not required to be filed with the Securities and Exchange
Commission ("SEC") as part of this Form S-8 Registration Statement and,
therefore, are not set forth herein.
The documents containing the information specified in Part I of this
Form S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the SEC by Envirosource, Inc.
("Company") are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 filed on March 29, 2000 pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000 filed on May 9, 2000 pursuant to
the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to such time as the Company files 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 to this Registration
Statement and to be a part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
General
At August 1, 2000, the authorized capital stock of the Company
consisted of 20,000,000 shares of common stock, par value $.05 per share (the
"Common Stock") and 5,620,000 shares of preferred stock, par value $.25 per
share. At August 1, 2000, there were 5,813,394 shares of Common Stock
outstanding, and there were approximately 875,586 shares of Common Stock
reserved for issuance in connection with options, warrants and conversion
rights. At August 1, 2000, there were no shares of preferred stock outstanding.
The Company may issue additional shares of Common Stock and preferred
stock in the future in connection with acquisitions, corporate combinations or
financing activities.
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Common Stock
Holders of the Common Stock are entitled to one vote for each share
held of record, and are entitled to receive any dividends that may be declared
by the Board of Directors out of funds legally available therefor and (after
satisfaction in full of the prior rights of creditors and the holders of
preferred stock) to share pro rata in the net assets of the Company upon
liquidation. Holders of the Common Stock do not have preemptive, subscription or
redemption rights. Upon issuance in accordance with the terms of the 1999 Stock
Option Plan, and after receipt of consideration therefor, all shares of the
Common Stock offered hereby will be validly issued, fully paid and
nonassessable.
The Company has not paid a cash dividend on its Common Stock since
November 1983 and has no present plan to pay cash dividends. The Company is
currently prohibited from paying cash dividends on its Common Stock by its bank
loan and security agreement. In addition, the indentures governing the Company's
9-3/4% Senior Notes due 2003 restrict the payment of dividends under certain
circumstances.
The Company's Certificate of Incorporation requires the affirmative
vote of the holders of 80% of the outstanding shares of the Common Stock voting
separately as a class to remove any director and requires the affirmative vote
of the holders of 66-2/3% of the outstanding shares of the Common Stock voting
separately as a class (i) to amend the Certificate of Incorporation (except to
change the name of the Company or its principal office, which may be
accomplished by a majority vote) or (ii) to approve the issuance during any
24-month period of shares of capital stock or other securities, which would
entitle the holders thereof to cast 5% or more of the votes for the election of
directors, any merger, consolidation or other reorganization of the Company, any
dissolution, liquidation or winding up of the Company or any sale or disposition
of any substantial portion of the assets of the Company; except that such
66-2/3% vote of the stockholders is not required to authorize or effect any
transaction described in clause (ii) that has been approved by 80% of the Board
of Directors. In addition, the Company's By-laws provide that special
stockholders' meetings may be held only pursuant to a call by the Chairman of
the Board, the President, the Board of Directors or any person or persons
holding at least 50% of the outstanding shares entitled to vote at such meeting.
The Common Stock is traded on the OTC Bulletin Board. The transfer
agent and registrar for the Common Stock and preferred stock is American Stock
Transfer & Trust Company.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be opined upon by
Leon Z. Heller, Esq. Mr. Heller is Vice President, Secretary and General Counsel
of the Company, owns shares of the Company's Common Stock, and holds options to
purchase shares of the Company's Common Stock under one or more of the Company's
stock incentive plans.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Envirosource, Inc. is a Delaware corporation. Article VII Section 4 of
the Company's By-Laws provides that the Company may indemnify its officers and
directors to the full extent permitted by law. Section 145 of the General
Corporation Law of the State of Delaware ("GCL") provides that a Delaware
corporation has the power to indemnify its officers and directors in certain
circumstances.
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Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, 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),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in or not opposed to the best interests of
the corporation, and with respect to any criminal action or proceeding, provided
that such director or officer had no cause to believe his or her conduct was
unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, 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 such person acted in any of the capacities set forth
above, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit provided that such director or
officer acted in good faith and in a manner reasonably believe to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to which such director
or officer shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
was brought shall determine that despite the adjudication of liability such
director or officer is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation shall have power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her or incurred by him or her 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 liabilities under Section
145.
Article TENTH of the Company's Certificate of Incorporation currently
provides that no director shall 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) under
Section 174 of the GCL, or (iv) for any transaction from which the director
derived an improper personal benefit.
The directors and officers of the Company are insured against losses
arising from claims against them as such for wrongful acts or omissions, subject
to certain limitations.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits have been filed with this Registration
Statement:
Exhibit No. Exhibit
5.1* Opinion of Leon Z. Heller, Esq.
10.1 Envirosource, Inc. 1999 Stock Option Plan
(incorporated herein by reference to Appendix A
to the Company's Proxy Statement filed April 30,
1999, in respect of its 1999 Annual Meeting of
Stockholders (File No. 1-1363)).
23.1* Consent of Grant Thornton LLP.
23.2* Consent of Ernst & Young LLP.
23.3* Consent of Leon Z. Heller, Esq. (contained in
Exhibit 5.1)
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) 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;
(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 20
percent 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;
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(b) that, for the purpose of determining any liability under the
Securities 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;
(c) 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; and
(d) that, for purposes of determining any liability under the
Securities 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.
Insofar as indemnification for liabilities arising under the Securities
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 SEC 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 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 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 Horsham, Pennsylvania.
Dated: August 3, 2000
ENVIROSOURCE, INC.
By: /s/ JOHN T. DILACQUA
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John T. DiLacqua
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on August 3, 2000.
Signature Title
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/s/ JOHN T. DILACQUA President, Chief Executive Officer
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John T. DiLacqua and Director (Principal Executive
Officer)
/s/ JOHN C. HEENAN Senior Vice President and Chief
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John C. Heenan Financial Officer (Principal
Financial and Accounting Officer)
/s/ ROBERT N. GURNITZ Chairman of the Board of Directors
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Robert N. Gurnitz
/s/ WALLACE B. ASKINS Director
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Wallace B. Askins
/s/ RAYMOND P. CALDIERO Director
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Raymond P. Caldiero
Director
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Jeffrey G. Miller
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/s/ JON D. RALPH Director
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Jon D. Ralph
/s/ JOHN M. ROTH Director
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John M. Roth
/s/ J. FREDERICK SIMMONS Director
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J. Frederick Simmons
Director
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Ronald P. Spogli
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EXHIBIT INDEX
Exhibit No. Exhibit
5.1 Opinion of Leon Z. Heller, Esq.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Leon Z. Heller, Esq. (contained
in Exhibit 5.1)
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