Registration No. 33-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ENVIRONMENT|ONE CORPORATION
................................................................................
(Exact name of registrant as specified in its charter)
New York 14-1505298
.......................................... ....................
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2773 Balltown Road, Schenectady, New York 12309-1090
.......................................... .....................
(Address of Principal Executive Offices) (Zip Code)
Environment|One Corporation 1996 Incentive Plan for Non-Employee Directors
................................................................................
(Full title of the plan)
Stephen V. Ardia, President, CEO and Chairman of the Board
2773 Balltown Road, Schenectady, New York 12309-1090
................................................................................
(Name and address of agent for service)
(518) 346-6161
................................................................................
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
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<S> <C> <C> <C> <C>
Common Stock, $0.10 100,000 shares $5.50 $550,000 $183.33
par value per share
====================================================================================================================================
</TABLE>
* Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee and based upon the average high and low prices reported by
the Nasdaq Small Cap Market on October 25, 1996.
Exhibit Index on page 5.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Environment|One Corporation
(the "Company") (Exchange Act File No. 1-7037) with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference and made a
part hereof:
(a) Annual Report on Form 10-KSB for the year ended
December 31, 1995, filed with the Commission on March
28, 1996;
(b) Quarterly Reports on Forms 10-QSB, for the quarterly
periods ended March 31, 1996, June 30, 1996 and
September 30, 1996, filed with the Commission on May
9, 1996, July 31, 1996 and October 29, 1996,
respectively; and
(c) The descriptions of the Company's Common Stock
contained in the Company's registration statements
filed under section 12 of the Securities Exchange Act
of 1934, including any amendments or reports filed
for the purpose of updating such descriptions.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Page 3 of 8
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Item 6. Indemnification of Officers and Directors.
Under the New York Business Corporation Law ("NYBCL"), a
corporation may indemnify its directors and officers made, or threatened to be
made, a party to any action or proceeding, except for stockholder derivative
suits, if such director or officer acted in good faith, for a purpose which he
or she reasonably believed to be in or, in the case of service to another
corporation or enterprise, not opposed to, the best interests of the
corporation, and, in criminal proceedings, had no reasonable cause to believe
his or her conduct was unlawful. In the case of stockholder derivative suits,
the corporation may indemnify a director or officer if he or she acted in good
faith for a purpose which he or she reasonably believed to be in or, in the case
of service to another corporation or enterprise, not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect of (i) a threatened action, or a pending action which is settled or
otherwise disposed of, or (ii) any claim, issue or matter as to which such
person has been adjudged to be liable to the corporation, unless and only to the
extent that the court in which the action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
Any person who has been successful on the merits or otherwise
in the defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered by
a court pursuant to the NYBCL, any indemnification under the NYBCL pursuant to
the above paragraph may be made only if authorized in the specific case and
after a finding that the director or officer met the requisite standard of
conduct by (i) the disinterested directors if a quorum is available, (ii) the
board upon the written opinion of independent legal counsel or (iii) the
stockholders.
The indemnification described above under the NYBCL is not
exclusive of other indemnification rights to which a director or officer may be
entitled, whether contained in the certificate of incorporation or bylaws or
when authorized by (i) such certificate of incorporation or bylaws; (ii) a
resolution of stockholders, (iii) a resolution of directors or (iv) an agreement
providing for such indemnification, provided that no indemnification may be made
to or on behalf of any director or officer if a judgment or other final
adjudication adverse to the director or officer establishes that his or her acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
or she personally gained in fact a financial profit or other advantage to which
he or she was not legally entitled.
The foregoing statement is qualified in its entirety by
reference to Sections 715, 717, 721 through 725 of the NYBCL.
Page 4 of 8
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Article "TWELFTH" of the Company's Certificate of
Incorporation provides that the Company's directors shall not be liable to the
Company or its shareholders for monetary damages as a result of breach of
fiduciary duty, except for liability if a judgment or final adjudication
establishes that a director's acts or omissions were undertaken in bad faith or
involved intentional misconduct or a knowing violation of law, or that the
director personally gained a financial profit or advantage to which he was not
entitled, or that the director violated NYBCL Section 719, as amended.
Article 12 of the Bylaws of the Company provides that the
Company shall indemnify any person made, or threatened to be made, a party to an
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he is or was a director or officer of
the Corporation, or served any other corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise at the request of the
corporation while he was such a director or officer, to the fullest extent
permitted by the NYBCL.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company, previously filed
with the Commission as Exhibit 3.1 to the Company's Quarterly
Report on Form 10-QSB for the period ending June 30, 1988 (No.
1-7037) and incorporated herein by reference.
4.2 Bylaws of the Company, previously filed with the Commission as
Exhibit 3.2 to the Company's Quarterly Report on Form 10-QSB
for the period ending June 30, 1988 (No. 1-7037) and
incorporated herein by reference.
4.3 Environment|One Corporation 1996 Incentive Plan for
Non-Employee Directors
5.1 Opinion of Bond, Schoeneck & King, LLP as to the validity of
certain shares being registered.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Bond, Schoeneck & King, LLP (included in Exhibit
5.1).
24 Power of Attorney (included at page 7 of this Registration
Statement).
Page 5 of 8
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Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. (a) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this registration statement 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.
(b) 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.
(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.
2. 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 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.
3. 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
Page 6 of 8
<PAGE>
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.
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 the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Schenectady, New York on the 16th day of October, 1996.
ENVIRONMENT|ONE CORPORATION
By: /s/ Stephen V. Ardia
----------------------
Stephen V. Ardia
President, CEO and
Chairman of the Board
Each person whose signature appears below hereby authorizes
Stephen V. Ardia, as attorney-in-fact, to execute in the name of such person and
to file this registration statement (including any changes that he may deem
necessary or appropriate) and any amendments, including post-effective
amendments, hereto.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen V. Ardia
- ---------------------------------
Stephen V. Ardia President, CEO and Chairman
of the Board October 16, 1996
/s/ Philip W. Welsh
- ---------------------------------
Philip W. Welsh Treasurer and
Director of Finance October 16, 1996
</TABLE>
Page 7 of 8
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<TABLE>
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Walter W. Aker
- ---------------------------------
Walter W. Aker Director October 16, 1996
/s/ John L. Allen
- ---------------------------------
John L. Allen Director October 16, 1996
/s/ Angelo Dounoucos
- ---------------------------------
Angelo Dounoucos Director October 16, 1996
/s/ Lars G. Grenback
- ---------------------------------
Lars G. Grenback Director October 16, 1996
/s/ Robert G. James
- ---------------------------------
Robert G. James Director October 16, 1996
/s/ Rolf E. Soderstrom
- ---------------------------------
Rolf E. Soderstrom Director October 16, 1996
</TABLE>
Page 8 of 8
ENVIRONMENT/ONE CORPORATION
1996 INCENTIVE PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose. The purpose of the 1996 Incentive Plan for Non-Employee
Directors (the Plan) of Environment One Corporation (the Company) is to increase
the ownership interest in the Company of non-employee Directors whose services
are considered essential to the Company's continued progress and to provide a
further incentive to serve as a Director of the Company.
2. Administration. The Plan shall be administered by a committee (the
Committee) appointed by the Board, consisting of not less than a sufficient
number of disinterested members of the Board so as to qualify the Committee to
administer the Plan as contemplated by Rule 16b-3 promulgated by the Securities
and Exchange Commission pursuant to the Securities and Exchange Act of 1934
(Exchange Act), or any successor or replacement rule adopted by the Commission
(Rule 16b-3). Subject to the provisions of the Plan, the Committee shall be
authorized to interpret the Plan, to establish, amend, and rescind any rules and
regulations relating to the Plan, and to make all other determinations necessary
or advisable for the administration of the Plan; provided, however, that the
Committee shall have no discretion with respect to the eligibility or selection
of Directors to receive options under the Plan, the number of shares of stock
subject to any such options granted under the Plan, or the purchase price
thereunder, the vesting period, or the timing of option grants, and provided
further that the Committee shall not have the authority to take any action which
would result in the loss of eligibility of awards granted under the Plan for the
formula based exemption under Rule 16b-3 (c)(2)(ii) (A) of the Exchange Act. The
determination of the Committee in the administration of the Plan, as described
herein, shall be final and conclusive and binding upon all persons including,
without limitation, the Company, its Stockholders and persons granted options
under the Plan. The secretary of the Company shall be authorized to implement
the Plan in accordance with its terms and to take such actions of a ministerial
nature as shall be necessary to effectuate the intent and purposes thereof.
3. Participation in the Plan. All Directors of the Company who are not
employees of the Company or any affiliate of the Company (Non-Employee
Directors) shall participate in the Plan.
4. Shares Subject to the Plan. Subject to adjustment as provided in
Section 7, an aggregate of 100,000 shares of Company Common Stock (Stock) shall
be available for issuance upon the exercise of options granted under the Plan.
The shares of Stock deliverable upon the exercise of options may be made
available from authorized but unissued shares or shares reacquired by the
Company, including shares purchased in the open market or in private
transactions. If any option granted under the Plan shall expire or terminate for
any reason without having been exercised in full, the shares subject to, but not
delivered under, such option shall again become available for the grant of other
options under the Plan. However, in the event that prior to the termination,
expiration, or lapse of the option grant, the holder of the option grant at any
time received one or more benefits of ownership pursuant to such grant (as
defined by the Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the shares
subject to such grant shall not be made available for regrant under the Plan. No
shares deliverable to the Company in full or partial payment of the purchase
price payable pursuant to paragraph 6(f) shall become available for the grant of
other options under the Plan.
5. Non-Statutory Stock Options. All options granted under the Plan
shall be non-statutory options not intended to qualify under Section 422 of the
Internal Revenue Code of 1986, as amended.
6. Terms, Conditions, and Form of Options. Each option granted under
this Plan shall be evidenced by a written agreement in such form as the
Committee shall from time-to-time approve, which agreements shall comply with
and be subject to the following terms and conditions:
(a) Option Grant Dates. During the time period beginning June
1, 1996, and ending the later of the 2005 Annual Meeting of Stockholders or May
31, 2005, and subject to the limitation on the number of shares subject to the
Plan, on the third Tuesday of December of each year, each current Non-Employee
Director shall be granted an option to purchase the number of shares of Stock
represented by the fair market value on the grant date (consistent with method
used in paragraph 6(b)) which, when rounded to the nearest multiple of ten,
equals the greater of (i) $10,000 or (ii) the average individual directors' cash
compensation payable by the Company to non-employee and non-officer directors
for the current fiscal year. The first grant shall be made on December 17, 1996
contingent upon approval of the Plan by the Stockholders at the 1996 Annual
Meeting of Stockholders.
(b) Purchase Price. The purchase price per share of Stock for
which each option is exercisable shall be one hundred percent (100%) of the fair
market value per share of Stock on the date the option is granted, which shall
be the closing per-share price of the Stock based upon its consolidated trading
as generally reported for NASDAQ listed stocks.
(c) Exercisability and Term of Options. Each option granted
under the Plan will become exercisable in total one (1) year after the date of
grant of the option. Each option granted under the Plan shall expire ten (10)
years from the date of the grant, and shall be subject to earlier termination as
hereinafter provided.
(d) Termination of Service. In the event of the termination of
service by the holder of any option for reasons other than those set forth in
paragraph (e) hereof, the then outstanding options of such holder may be
exercised within one (1) year after such termination only to the extent that
they were exercisable on the date of such termination, or on their stated
expiration date, whichever occurs first.
(e) Retirement, Disability or Death. In the event of
termination of service by the holder of any option by reason of retirement from
the Board, total and permanent disability (defined below), or death, each of the
then outstanding options of such holder will mature immediately and become
exercisable in accordance with paragraph (c) above and the holder (or legal
representative) may exercise the options at any time within two (2) years after
such retirement, disability, or death but in no event after the expiration date
of the term of the option. However, if the holder dies following termination of
service on the Board by reason of retirement or total and permanent disability,
such options shall only be exercisable for one (1) year after the holders death
or two (2) years after retirement or termination for total and permanent
disability, whichever is longer, or until the expiration date of the term of the
option, if earlier. For purposes of this Plan, the term total and permanent
disability shall mean the inability to perform usual Board of Director duties
for the Company due to a medical condition that is expected to last for one (1)
year or more as certified by a statement by a qualified outside physician;
provided that no such determination shall be made if the determination may cause
the Plan to fail to comply with the formula award exception for grants of
options to Directors, as set forth in Rule 16b-3(c) (ii) (A) of the Exchange
Act.
(f) Payment. Options may be exercised only upon written notice
of exercise and payment to the Company in full of the purchase price of the
shares to be delivered. Such payment shall be made in cash or in Stock which has
been held for six (6) months, or in a combination of cash and Stock which has
been held for six (6) months. The sum of the cash and the fair market value of
such Stock shall be at least equal to the aggregate purchase price of the share
to be delivered.
7. Adjustment Upon Changes in Stock. If there shall be any change in
the Stock subject to the Plan or to any option granted thereunder through
merger, consolidation, reorganization, recapitalization, stock dividend, stock
split, exchange of stock or other change in the corporate structure of the
Company, appropriate adjustments shall be made in the aggregate number and kind
of shares or other securities or property subject to the Plan, and the number
and kind of shares or other securities or property subject to outstanding and to
subsequent option grants and in the purchase price of outstanding options to
reflect such changes; provided that no such adjustment shall be made if the
adjustment may cause the Plan to fail to comply with the formula award exception
for grants of options to Directors, as set forth in Rule 16b-3(c)(2)(ii) (A) of
the Exchange Act.
8. Options Non-Assignable and Non-Transferable. Each option and all
rights thereunder shall be non-assignable and non-transferable other than by
will or the laws of descent and distribution or pursuant to the requirements of
a Qualified Domestic Relations Order and shall be exercisable during the holders
lifetime only by the holder or the holders guardian or legal representative.
9. Limitation of Rights.
(a) No Right to Continue as a Director. Neither the Plan, nor
the granting of an option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Director has a right to continue as a Director for any period of time,
or at any particular rate of compensation.
(b) No Stockholders Rights for Options. An optionee shall have
no rights as a Stockholder with respect to the shares covered by options granted
hereunder until the date of the issuance of a stock certificate therefore, and
no adjustment will be made for dividends or other rights for which the record
date is prior to the date such certificate is issued.
10. Effective Date and Duration of Plan. The Plan shall become
effective immediately following approval by the Stockholders at the 1996 Annual
Meeting of Stockholders. The period during which option grants shall be made
under the Plan shall terminate on the day following the later of the 2005 Annual
Meeting of Stockholders or May 31, 2005 (unless the Plan is extended or
terminated at an earlier date by Stockholders) but such termination shall not
affect the terms of any then outstanding options.
11. General Provisions.
(a) Notice. Any written notice to the Company required by any
of the provisions of this Plan shall be addressed to the Secretary of the
Company and shall become effective when it is received.
(b) Use of Proceeds. Proceeds from the sale of Stock pursuant
to options granted under the Plan shall constitute general funds of the Company.
(c) Fractional Shares. No fractional shares of Stock shall be
issued pursuant to options granted hereunder, but in lieu thereof, the cash
value of such fraction shall be paid.
(d) Change in Control. Notwithstanding the provisions of
paragraph 6(c) herein, in the event of a Change of Control (as defined in the
Environment One Corporation's 1996 Incentive Compensation Plan) during the term
of one or more options, each such option which is outstanding as of the
effective date of the Change of Control shall, effective as of the effective
date of such Change of Control, become exercisable with respect to all
unexercised shares of stock thereunder for the remainder of its term.
(e) Successors. All obligations of the Company under the Plan,
with respect to options granted hereunder, shall be binding on any successor to
the Company, whether the existence of such successor is the result of a direct
or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Company.
(f) Amendment, Modification, and Termination. Subject to the
terms set forth in this paragraph, the Board may terminate, amend, or modify the
Plan at any time and from time to time; provided, however, that the provisions
set forth in the Plan regarding the amount of securities to be awarded to
Directors, the price of securities awarded to Directors, and the timing of
grants of options to Directors, may not be amended more than once within any six
(6) month period, other than to comport with changes in the Internal Revenue
Code, the Employee Retirement Income Security Act of 1974 as amended from time
to time, or the rules thereunder.
(g) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan shall be determined
in accordance with the laws of the State of New York.
Exhibit 5.1
October 31, 1996
Environment One Corporation
2773 Balltown Road
Schenectady, New York 12309
Gentlemen:
We have acted as counsel to Environment One Corporation, a New
York Corporation (the "Company") in connection with the Registration Statement
on Form S-8 (the "Registration Statement") filed on this date with the United
States Securities and Exchange Commission with respect to the Environment One
Corporation 1996 Incentive Plan for Non-Employee Directors (the "Plan").
In rendering this opinion, we have examined and relied upon
originals or copies, authenticated or certified to our satisfaction, of such
corporate records of the Company, communications or certifications of public
officials, communications with or certificates of officers, directors and
representatives of the Company, and such other documents as we have deemed
necessary to the issuance of the opinion set forth herein. In making this
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents tendered to us as originals, and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
Based upon the foregoing, it is our opinion that the shares of
the Company's Common Stock, par value $0.10 per share registered pursuant to the
Registration Statement and offered by the Company pursuant to the Plan will be,
assuming that such shares are validly authorized at the time of issuance and
assuming that no change occurs in the applicable law or pertinent facts, when
paid for in full by the participant and issued in accordance with the Plan,
legally issued, fully paid and non-assessable.
We hereby consent to the use of this letter as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Bond, Schoeneck & King, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
Environment One Corporation
We consent to the use of our report, included in the December 31, 1995 Annual
Report on Form 10-KSB of Environment One Corporation, incorporated herein by
reference.
/s/ KPMG Peat Marwick, LLP
Albany, New York
October 31, 1996
