As filed with the Securities and Exchange Commission on February
12, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE GOLDFIELD CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 100 Rialto Place, Suite 500 88-0031580
(State or Other Melbourne, FL 32901 (I.R.S. Employer
Jurisdiction of (407) 724-1700 Identification No.)
Incorporation or (Address, including Zip Code of
Organization) Principal Executive Offices)
The Goldfield Corporation
1998 Executive Long-Term
Incentive Plan
(Full Title of the Plan)
John M. Starling
Secretary
The Goldfield Corporation
100 Rialto Place, Suite 500
Melbourne, Florida 32901
(407) 724-1700
(Name, Address and Telephone Number, Including
Area Code, of Agent For Service)
With a copy to:
David P. Bicks
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
(212) 424-8000
<TABLE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate Amount Of
Class Of Securities Amount To Be Price Per Offering Registration
To Be Registered Registered Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, par
value $0.10 per
share 1,300,000 shares (1) $.203125 (2) $264,063 (2) $74 (2)
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement also covers such
additional number of shares as may be made available for issuance by reason of
the operation of the anti-dilution provisions of The Goldfield Corporation
1998 Executive Long-Term Incentive Plan.
(2) The registration fee for the securities registered hereby has been
calculated pursuant to Rule 457(h) under the Securities Act of 1933 and is
based upon the average of the high and low sale prices of the Common Stock,
par value $0.10 per share, of The Goldfield Corporation as reported in the
consolidated reporting system on February 9, 1998.
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by The
Goldfield Corporation (the "Registrant") with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are hereby incorporated by
reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998;
(d) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1998; and
(e) The description of the Registrant's Common Stock
contained in the Registrant's Registration Statement on Form 8-A
filed pursuant to Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment 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 herein and to be a part hereof from the date of the
filing of such documents.
Item 6. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL") empowers a corporation 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, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' 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, had no reasonable cause to believe
his conduct was unlawful.
Subsection (b) of DGCL Section 145 empowers a corporation 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 such person acted in any of the
capacities set forth above, against expenses (including attorneys'
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 may be made in respect of any claim, issue or matter
as to which such person 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 or suit was brought shall
determine 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 which the court shall deem proper.
Other subsections of DGCL Section 145 further provide that to the
extent a director or officer has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred
to in subsections (a) and (b) of Section 145, or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that indemnification
provided for by Section 145 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the
benefit of such person's heirs, executors and administrators; and
that expenses incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
Section Seven of the Registrant's Restated Certificate of
Incorporation provides that the Registrant shall, to the fullest
extent permitted by Section 145 of the DGCL, as amended from time to
time, indemnify all persons whom it may indemnify pursuant thereto.
This section further provides that no director of the Registrant
shall be personally liable to the Registrant or to its stockholders
for monetary damages arising out of or resulting from any breach of
his fiduciary duty as a director, provided, however, that this shall
not apply where such liability arises out of or results from: (a)
the breach by such director of his duty of loyalty to the Registrant
or its stockholders; (b) any act or omission of such director not in
good faith or which involves intentional misconduct or a knowing
violation of the law; (c) any transaction from which such director
derives an improper personal benefit; or (d) any payment of or
dividend on or any purchase or redemption of the capital stock of
the Registrant in violation of the provisions of Section 174 of the
DGCL.
DGCL Section 145 provides that any indemnification provided for
therein may only be made upon a determination by (i) a majority vote
of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a designated
committee of directors, or (iii) if there are no such directors, or
if such directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders that the indemnitee has
met the standard of conduct required by Section 145 entitling him to
such indemnification.
Article XIII of the Registrant's Bylaws provides that, to the extent
not inconsistent with Delaware law as in effect from time to time,
the Registrant shall indemnify each person (and his heirs,
executors, administrators and other legal representatives) who is,
or shall have been, a director, officer or employee of the
Registrant against all liabilities and expenses (including
judgments, fines, penalties and attorneys' fees) reasonably incurred
by or finally determined against such person in connection with or
arising out of any action, suit or proceeding in which said person
may be a party defendant or with which he may be threatened or
otherwise involved, directly or indirectly, by reason of his having
been a director, officer or employee of the Registrant, except in
relation to matters as to which any such person shall be finally
adjudged in such action, suit or proceeding to have been liable for
misconduct or negligence in the performance of his duty to the
Registrant, or in respect of any action, suit or proceeding based on
Section 16(b) of the Federal Securities Exchange Act of 1934 or any
other Federal or State statutory provisions similar thereto;
provided, however, that with respect to any fines, penalties and
other costs and expenses imposed upon such person in connection with
any criminal action or proceeding, indemnification shall not be made
unless the Registrant shall have received an opinion of independent
counsel to the effect that, with respect to the matter or matters
out of which such action or proceeding arose, such person was not
liable for misconduct or negligence in the performance of his duty
to the Registrant and that such person acted in good faith, for a
purpose which he reasonably believed to be in the best interests of
the Registrant and had no reasonable cause to believe that his
conduct was unlawful.
In addition, Article XIII of the Registrant's Bylaws provides that
the indemnification also applies to all amounts paid in compromise
or in settlement, and all expenses reasonably incurred in connection
therewith, provided that prior to such indemnification the
Registrant shall have received an opinion of independent counsel to
the effect that a person making such compromise or settlement would
not have been liable for misconduct or negligence in the performance
of his duty to the Registrant in connection with the matter or
matters out of which such compromise or settlement arose.
Also, Article XIII of the Registrant's Bylaws permits the Registrant
to, if authorized by the directors, prior to final adjudication or
compromise or settlement of the matter or matters as to which
indemnification is claimed, advance to such person all expenses
imposed upon or incurred by him to the date of such request if the
Registrant shall have received substantially concurrently with any
such request an opinion of independent counsel to the effect that it
is probable that, upon termination of the action, suit or proceeding
or threatened action as to which such reimbursement is sought, such
person will be entitled to indemnification under the Registrant's
Bylaws.
DGCL Section 145 empowers the corporation to purchase and maintain
insurance on behalf of a director, officer, employee or agent of the
corporation 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 liabilities under Section 145. The Registrant has in
force and effect a policy insuring the directors and officers of the
Registrant against losses which they or any of them shall become
legally obligated to pay for by reason of any actual or alleged
error or misstatement or misleading statement or act or omission or
neglect or breach of duty by the directors and officers in the
discharge of their duties, individually or collectively, or any
matter claimed against them solely by reason of their being
directors or officers, such coverage being limited by the specific
terms and provisions of the insurance policy.
Item 8. Exhibits.
*4(a) Restated Certificate of Incorporation of The Goldfield
Corporation, as amended (previously filed as Exhibit 3.1
to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1987 (File No. 1-7525)).
*4(b) Bylaws of The Goldfield Corporation (previously filed as
Exhibit 3.2 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1987 (File No. 1-7525)).
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
23(a) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(contained in Exhibit 5).
23(b) Consent of KPMG LLP.
24 Power of Attorney (included on signature page).
____________________
* Incorporated herein by reference.
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 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 a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 with or furnished to the
Securities and Exchange Commission 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; and
(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.
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 city of
Melbourne, state of Florida, on this 12th day of February, 1999.
THE GOLDFIELD CORPORATION
(Registrant)
By: /s/
Name: John H. Sottile
Title: President, Chief Executive
Officer and Chairman of the
Board of Directors
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 date indicated.
Each person whose signature appears below hereby appoints and
constitutes John H. Sottile as his attorney-in-fact, with full power
of substitution, for him in any and all capacities, to execute in
the name and on behalf of such person any amendment to this
registration statement (including any post-effective amendment) and
to file the same, with exhibits thereto, and other documents in
connection therewith, making such changes in this registration
statement as the person so acting deems appropriate, hereby
ratifying and confirming all that said attorney-in-fact or his
substitute may do or cause to be done by virtue hereof.
By: /s/
Name: John H. Sottile
Title: President, Chief Executive
Officer and Chairman of the
Board of Directors
Date: February 12, 1999
By: /s/
Name: Stephen R. Wherry
Title: Vice President, Finance
and Chief Financial Officer
(Principal Financial Officer),
Treasurer and Principal
Accounting Officer
Date: February 12, 1999
By: /s/
Name: John M. Starling
Title: Director and Secretary
Date: February 12, 1999
By: /s/
Name: John P. Fazzini
Title: Director
Date: February 12, 1999
By: /s/
Name: Danforth E. Leitner
Title: Director
Date: February 12, 1999
By: /s/
Name: Dwight W. Severs
Title: Director
Date: February 12, 1999
EXHIBIT INDEX
Exhibit
Number Description of Document Page
*4(a) Restated Certificate of Incorporation of The
Goldfield Corporation, as amended (previously
filed as Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the year ended
December 31, 1987 (File No. 1-7525)).
*4(b) Bylaws of The Goldfield Corporation (previously
filed as Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the year ended December 31,
1987 (File No. 1-7525)).
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. II-9
23(a) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(contained in Exhibit 5) II-9
23(b) Consent of KPMG LLP. II-10
24 Power of Attorney (included on signature page). II-6
____________________
* Incorporated herein by reference.
Exhibit 5
February 11, 1999
The Goldfield Corporation
100 Rialto Place, Suite 500
Melbourne, Florida 32901
Ladies and Gentlemen:
We are acting as counsel for The Goldfield Corporation, a Delaware
corporation, in connection with the registration on Form S-8 of
1,300,000 shares of Common Stock, $0.10 par value (the "Stock") for
offer and sale pursuant to The Goldfield Corporation 1998 Executive
Long-Term Incentive Plan (the "Plan").
We have examined such corporate records, certificates and other
documents as we have considered necessary for the purposes hereof.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of
such latter documents. As to any facts material to our opinion, we
have, when relevant facts were not independently established, relied
upon the aforesaid records, certificates and documents.
Based on the foregoing, we are of the opinion that, upon issuance,
delivery and payment therefor in the manner contemplated by the
Plan, the Stock will be validly issued, fully paid and non-assessable.
Our opinion set forth herein is limited in all cases to matters
arising under the laws of the State of New York, the General
Corporation law of the State of Delaware and the federal laws of the
United States. We consent to the use of this opinion as an Exhibit
to the Registration Statement. In giving such consent, we do not
thereby concede that we are within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
The Goldfield Corporation
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of The Goldfield Corporation of our report
dated February 20, 1998, with respect to the consolidated balance
sheets of The Goldfield Corporation as of December 31, 1997 and
1996, and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1997, which report appears in
the 1997 Annual Report on Form 10-K of The Goldfield Corporation.
/s/
KPMG LLP
Orlando, Florida
February 11, 1999
