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
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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
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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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
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 650,000 shares $4.375 (1) $2,843,750 (1) $980.60
</TABLE>
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(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
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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.
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
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
