As filed with the Securities and Exchange Commission
on March 26, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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
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(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
(630) 571-8800
(Address of Principal Executive Offices)
NON-EMPLOYEE DIRECTORS' COMPENSATION PLAN
(Full title of the plan)
STEPHEN M. SCHUSTER Copy to:
Vice President
Secretary and General Counsel Gary D. Gerstman
Envirodyne Industries, Inc. Sidley & Austin
701 Harger Road, Suite 190 One First National Plaza
Oak Brook, Illinois 60521 Chicago, Illinois 60603
(630) 571-8800 (312) 853-2060
(Name, address and telephone
number including area code,
of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Proposed
Title of Securities Amount to be maximum offering maximum aggregate Amount of
to be registered (1) registered price per share offering price registration fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 200,000 shares $6.875 (2) $1,375,000 (2) $416.67
Common Stock Purchase Rights 200,000 (3) -- (3) -- (3) -- (3)
<FN>
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(1) In addition, pursuant to Rule 416 under the Securities
Act of 1933, the number of shares registered hereunder
includes such additional number of shares of Common Stock
and Common Stock Purchase Rights that may become issuable
pursuant to the antidilution adjustment provisions of the
plan.
(2) 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 the Registrant on The Nasdaq National Market on
March 25, 1997.
(3) Rights are initially carried and traded with the Common
Stock of the Registrant. Value attributable to such
rights, if any, is reflected in the market price of the
Common Stock.
</TABLE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
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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 26, 1996.
(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 26, 1996.
(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.
(d) The description of the Company's common stock purchase
rights, which is contained in the Registration Statement filed with
the Commission on June 26, 1996 under the Exchange Act, including any
subsequent amendment or any report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment to the 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.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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The legality of the securities being offered pursuant to this
Registration Statement has been passed on by Mr. Stephen M. Schuster,
Vice President, Secretary and General Counsel of the Company. Mr.
Schuster is a full-time employee of the Company and owns, and hold
options to purchase, shares of Common Stock.
Item 6. Indemnification of Directors and Officers
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The Company's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") provides that the personal
liability of the directors of the Company is eliminated to the fullest
extent permitted by Section 102(b)(7) of the General Corporation Law
of the State of Delaware (the "DGCL"). Accordingly, 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) for unlawful payment of dividends
under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
The Company's Certificate of Incorporation also provides
indemnification for directors or officers to the fullest extent
permitted by Section 145 of the DGCL. The Company's By-Laws (i)
provides for indemnification of directors and officers meeting the
applicable standard of conduct in the By-Laws, (ii) provides for the
advancement of expenses incurred by a director or officer in defending
or investigating a threatened or pending action, suit or proceeding,
(iii) authorizes the Company to purchase and maintain insurance to
protect itself and any directors, officers, and employees, and (iv)
authorizes a director or officer to apply to any court for
indemnification permitted under the By-Laws. Pursuant to the By-Laws,
the Company maintains insurance against any liability incurred by its
directors and officers in defense of any action in which they are made
parties by reason of their positions as directors and officers.
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 attorneys' fees) actually and reasonably incurred in
connection therewith.
Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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The Exhibits accompanying this Registration Statement are listed
on the accompanying Exhibit Index.
Item 9. Undertakings
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(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
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apply if 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.
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(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
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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
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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 26th day of March, 1997.
ENVIRODYNE INDUSTRIES, INC.
By: /s/ F. Edward Gustafson
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F. Edward Gustafson
Chairman of the Board, President
and Chief 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 indicated on this 26th day of March, 1997.
Signature and Title Signature and Title
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/s/ F. Edward Gustafson /s/ Malcom I. Glazer
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F. Edward Gustafson Malcolm I. Glazer
Chairman of the Board, President Director
and Chief Executive Officer
(Principal Executive Officer)
/s/ Gordon S. Donovan /s/ Michael E. Heisley
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Gordon S. Donovan Michael E. Heisley
Vice President, Chief Financial Officer Director
and Treasurer
(Principal Financial and
Accounting Officer)
/s/ Robert N. Dangremond /s/ Gregory R. Page
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Robert N. Dangremond Gregory R. Page
Director Director
/s/ Avram A. Glazer /s/ Mark D. Senkpiel
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Avram A. Glazer Mark D. Senkpiel
Director Director
INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-8
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Exhibit Description of Exhibit Page No.
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4.1 Amended and Restated certificate of Incorporation *
of the Company (incorporated herein by reference
to Exhibit 3.1 to From 8-K filed under the Exchange
Act, File No. 0-5485).
4.2 By-Laws of the Company (incorporated herein by *
reference to Exhibit 3.1 to Form 8-K filed under the
Exchange Act, File No. 0-5485).
4.3 Rights Agreement dated as of June 26, 1996 between *
the Company and Harris Trust and Savings Bank, as
rights agent, together with the specimen certificate
representing common stock purchase rights attached
as Exhibit A thereto (incorporated herein by reference
to Exhibit 1 of the Company's Registration Statement
on Form 8-A filed under the Exchange Act, File No. 0-5485).
**5.0 Opinion of Stephen M. Schuster, Esq. 8
**23.1 Consent of Stephen M. Schuster (included in Exhibit 5.) 8
**23.2 Consent of Coopers & Lybrand L.L.P. 10
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* Incorporated By Reference
**Filed herewith.
Exhibit 5.0
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March 26, 1997
Envirodyne Industries, Inc.
701 Harger Road, Suite 190
Oak Brook, IL 60521
Re: Envirodyne Industries, Inc. 200,000 Shares of Common Stock,
par value $.01 per share
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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 (the "Securities Act"), relating to the registration of
200,000 shares of common stock, par value $.01 per share (the
"Shares"), of Envirodyne, together with 200,000 common stock purchase
rights (the "Rights") associated therewith, to be issued under the
Non-Employee Directors' Compensation Plan (the "Plan"). The terms of
the Rights are set forth in the Rights Agreement dated as of June 26,
1996 (the "Rights Agreement") between the Company and Harris Trust and
Savings Bank, as Rights Agent.
I am familiar with the corporate proceedings to date with respect
to the proposed issuance and sale of the Shares and the Rights 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 in good
standing under the laws of the State of Delaware.
2. All Shares as may be issued in accordance with the terms of
the Plan will, upon such issuance, will be validly issued,
fully paid and non-assessable shares of Envirodyne.
3. The Rights associated with the Shares referred to in
paragraph 2 will be legally issued when (i) such Rights have
been duly issued in accordance with the terms of the Rights
Agreement and (ii) the associated Shares have been duly
issued and paid for as set forth in paragraph 2.
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,
/s/ Stephen M. Schuster
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Stephen M. Schuster
Vice President, Secretary
and General Counsel
SMS:gam
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in the registration
statement on Form S-8 (File No. ) of our report dated
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March 20, 1997, 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
March 24, 1997
