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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PDG ENVIRONMENTAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-2677298
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
300 OXFORD DRIVE, MONROEVILLE, PENNSYLVANIA 15146
(Address of principal executive offices) (Zip Code)
AMENDED AND RESTATED INCENTIVE STOCK OPTION PLAN AS OF JUNE 25, 1991
(Full title of the plan)
Dulcia Maire, Secretary
300 Oxford Drive
Monroeville, Pennsylvania 15146
(Name and address of agent for service)
(412) 856-2200
Telephone number, including area code, of agent for service
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share offering price fee
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<S> <C> <C> <C> <C>
Common Stock 250,000 shares $0.36 $90,000 $27.27
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, filed by the Corporation with the Securities and
Exchange Commission, are incorporated herein by reference:
(a) Annual Report on Form 10-K, dated May 15, 1997, for the fiscal year
ended January 31, 1997.
(b) Quarterly Report on Form 10-QSB dated June 9, 1997 for the three months
ended April 30, 1997.
(c) Description of Common Stock of PDG Environmental, Inc. included in its
Certificate of Incorporation, Certificate of Amendment to the Certificate
of Incorporation and the Amended and Restated By-laws filed as Exhibits
3.1, 3.2 and 3.3, respectively, to its Annual Report on Form 10-K for the
year ended January 31, 1997.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
At the Annual Meeting on June 25, 1991, the Corporation's stockholders
approved a Certificate of Amendment (the "Amendment") to the Corporation's
Certificate of Incorporation to provide for indemnification rights of
directors, officers, employees and agents as permitted by the Delaware General
Corporation Law ("DGCL") and to clarify the limitation of liability of the
Corporation's directors pursuant to the DGCL. In addition, the Board of
Directors amended the By-Laws of the Corporation to provide for the
indemnification of the directors, officers, employees and agents of the
Corporation to the fullest extent permissible pursuant to Section 145 of the
DGCL.
The Amendment provided additional protection to directors, officers and other
persons consistent with the indemnification provisions of Section 145 of the
DGCL. As permitted by the DGCL, the Amendment provided that the Corporation
shall indemnify its directors and officers 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 an action by or in the right of the
Corporation -- a "derivative action"), 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 unlawful. A similar standard of
care is applicable in the case of derivative action, except that indemnification
only extends to expenses (including attorneys' fees) incurred in connection with
the 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 to be liable to the Corporation.
As further permitted by the DGCL, the Amendment provides that the
Corporation will pay the litigation expenses of a director or officer as they
are incurred. Under the Amendment, directors and officers would be given
advance assurance that their litigation expenses will be paid by the
Corporation subject to their agreement to repay any such amounts if it is
ultimately determined that they are not entitled to be indemnified.
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The Amendment provides for indemnification only as authorized in the
specific case upon a determination that the person seeking indemnity has met
the applicable standard of conduct. Said determination can be made by the
majority vote of disinterested members of the Board of Directors, by
independent legal counsel or by the stockholders.
The indemnification requirements might have a significant adverse effect on
the Corporation and its stockholders in the event of a substantial judgment or
settlement with respect to a director or officer entitled to indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits have been filed as part of this registration
statement.
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Pages of
Sequential
Exhibit Index Numbering System
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5.1 Opinion of Thorp, Reed & Armstrong, counsel for the Corporation
as to the legality of the securities being registered.
23.1 The consent of Ernst & Young, independent auditors.
23.2 The consent of Thorp, Reed & Armstrong, counsel for the
Corporation (Included in Exhibit 5.1)
24.1 Power of Attorney of certain directors.
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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;
(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 information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed 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.
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(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.
(4) 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.
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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 the City of Monroeville, State of Pennsylvania, on September 10,
1997.
PDG ENVIRONMENTAL, INC.
By /s/ John C. Regan
------------------------------------
Chairman 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 and on the
date indicated.
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/s/ John C. Regan September 10, 1997
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Chairman and Chief Executive Officer
(Principal Executive Officer and Director)
/s/ Richard A. Bendis By /s/ John C. Regan
- ------------------------------------------ ------------------------------------------
Director John C. Regan, Attorney-in-Fact
September 10, 1997
/s/ Edwin J. Kilpela By /s/ John C. Regan
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Director John C. Regan, Attorney-in-Fact
September 10, 1997
/s/ Edgar Berkey By /s/ John C. Regan
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Director John C. Regan, Attorney-in-Fact
September 10, 1997
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Exhibit 5.1
THORP REED
&
ARMSTRONG
September 9, 1997
PDG Environmental, Inc.
300 Oxford Drive
Monroeville, Pennsylvania 15146
Ladies and Gentlemen:
We have acted as counsel for PDG Environmental, Inc., a Pennsylvania
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended, of 250,000 shares
(the "Shares"), par value $.02 per share, of the Company's common stock
("Common Stock") reserved for issuance upon the exercise of stock options
("Options") granted pursuant to the Company's Amended and Restated Incentive
Stock Option Plan as of June 25, 1991 (the "Plan"), as described in the
Registration Statement.
In connection with this opinion, we have examined a copy of the Registration
Statement, copies of the Company's certificate of incorporation and by-laws,
and such other instruments and documents as we have deemed necessary as a basis
for the opinion hereinafter expressed. In rendering such opinion, we have
assumed that all signatures on all documents examined by us are genuine, that
all documents submitted to us as originals are authentic, that all documents
submitted to us as copies are true and correct copies of the originals thereof
and that all information submitted to us was accurate and complete.
Based on the foregoing, and subject to the assumptions and limitations herein
set forth, we are of the opinion that the Shares to be issued upon exercise of
Options granted pursuant to the Plan, as described in the Registration
Statement, when issued in accordance with the Plan, will be validly issued,
fully paid and non-assessable.
This opinion letter is limited in all respects to the applicable laws of the
Commonwealth of Pennsylvania and the United States of America and the general
corporate laws of the State of Delaware.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Thorp Reed & Armstrong
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) and related Prospectus pertaining to the Amended and Restated
Incentive Stock Option Plan as of June 25, 1991 of our report dated May 15,
1997, with respect to the consolidated financial statements of PDG
Environmental, Inc. included in its Annual Report (Form 10-K) for the year
ended January 31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
September 4, 1997
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Exhibit 24.1
POWER OF ATTORNEY
-----------------
KNOW BY ALL MEN BY THESE PRESENT, the undersigned director of PDG
ENVIRONMENTAL, INC., a Delaware Corporation, does make, constitute and appoint
JOHN C. REGAN, with full power and authority to act as his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead in any and
all capacities, to sign the Registration Statement on Form S-8 for the Amended &
Restated Incentive Stock Option Plan as of June 25, 1991 and to file such
Registration Statement, so signed, with all exhibits thereto, with the
Securities and Exchange Commission, hereby further granting unto said
attorney-in-fact full power and authority to do and perform any and all acts and
things requisite and necessary to be done in and about the premises as fully to
all intents and purposes as he might or could do in person; the undersigned
hereby ratifies and confirms all that said attorney and agent, shall do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
25th day of August, 1997.
/s/ Edgar Berkey (SEAL)
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Edgar Berkey, Director
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POWER OF ATTORNEY
-----------------
KNOW BY ALL MEN BY THESE PRESENT, the undersigned director of PDG
ENVIRONMENTAL, INC., a Delaware Corporation, does make, constitute and appoint
JOHN C. REGAN, with full power and authority to act as his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead in any and
all capacities, to sign the Registration Statement on Form S-8 for the Amended &
Restated Incentive Stock Option Plan as of June 25, 1991 and to file such
Registration Statement, so signed, with all exhibits thereto, with the
Securities and Exchange Commission, hereby further granting unto said
attorney-in-fact full power and authority to do and perform any and all acts and
things requisite and necessary to be done in and about the premises as fully to
all intents and purposes as he might or could do in person; the undersigned
hereby ratifies and confirms all that said attorney and agent, shall do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
25th day of August, 1997.
/s/ Richard Bendis (SEAL)
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Richard Bendis, Director
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POWER OF ATTORNEY
-----------------
KNOW BY ALL MEN BY THESE PRESENT, the undersigned director of PDG
ENVIRONMENTAL, INC., a Delaware Corporation, does make, constitute and appoint
JOHN C. REGAN, with full power and authority to act as his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead in any and
all capacities, to sign the Registration Statement on Form S-8 for the Amended &
Restated Incentive Stock Option Plan as of June 25, 1991 and to file such
Registration Statement, so signed, with all exhibits thereto, with the
Securities and Exchange Commission, hereby further granting unto said
attorney-in-fact full power and authority to do and perform any and all acts and
things requisite and necessary to be done in and about the premises as fully to
all intents and purposes as he might or could do in person; the undersigned
hereby ratifies and confirms all that said attorney and agent, shall do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal this
25th day of August, 1997.
/s/ Edwin J. Kilpela (SEAL)
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Edwin J. Kilpela, Director
