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As filed with the Securities and Exchange Commission on August ___, 1996.
Registration No. 333-________
____________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________________________________
ATC ENVIRONMENTAL INC.
(Exact Name of Issuer as specified in its Charter)
Delaware 46-0399408
(State of other Jurisdiction (I.R.S. Employer
Incorporation or Organization) Identification No.)
104 East 25th Street, 10th Floor, New York, NY 10010
(Address of Principal Executive Offices) (Zip Code)
_______________________________________________
ATC ENVIRONMENTAL INC.
1993 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
(Full title of the Plans)
______________________________________________
Morry F. Rubin, President
104 East 25th Street, 10th Floor
New York, NY 10010
(212) 353-8280
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
______________________________________________
Copies of all communications to:
Steven Morse, Esq.
Lester Morse P.C.
111 Great Neck Road, Suite 420
Great Neck, NY 11021
Pursuant to Rule 429, this Registration Statement
constitutes a Post-Effective Amendment to the Registrant's Form S-
8 Registration Statement, File No. 33-73578 which relates to
200,000 shares underlying the Registrant's 1993 Incentive and Non-
Statutory Stock Option Plan.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Each Class Offering Aggregate Registra-
of Amount to be Price Offering tion Fee
Securities Registered Per Price (3) (3)
to be Share
Registered (3)
(1)
Common, Stock 300,000 $ 13.000 $3,900,000 $ 1,344.83
Par Value (1)(2)
$.01 Per Share
Total $3,900,000 $ 1,344.83
______________
(1) The 1993 Incentive and Non-Statutory Stock Option Plan (the
"1993 Plan") originally authorized the granting of Incentive
and Non-Statutory Stock Options to purchase an aggregate of
200,000 shares of Common Stock. In December 1993, a Form S-
8 Registration Statement, File No. 33-73578 was filed with
the Securities and Exchange Commission registering the
200,000 shares underlying the 1993 Plan. In 1995, the Board
of Directors and Stockholders of the Registrant approved a
300,000 share increase in the 1993 Plan. This Registration
Statement, which acts as a Post-Effective Amendment to File
No. 33-73578, registers the additional 300,000 shares under
the 1993 Plan for exercise and the resale of such shares by
non-affiliated persons to the public as Selling Security
Holders.
(2) Pursuant to Rule 416 promulgated under the Securities Act of
1933, an additional undeterminable number of shares of
Common Stock is being registered to cover any adjustments in
the number of shares of Common Stock pursuant to the anti-
dilution provisions of the Incentive and Non-Statutory Stock
Option Plan.
(3) Estimated solely for the purpose of calculating the
registration fee and based on no less than the average of
the closing high bid and low asked price of the Company's
Common Stock on NASDAQ on August 16, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
-----------------------------------------------
Incorporated hereby by reference and made a part hereof
is the Company's Annual Report on Form 10-K for the fiscal year
ended February 29, 1996, Form 8-K dated May 24, 1996, as amended,
and Form 10-Q for the quarter ended May 31, 1996, as and if
amended, filed under the Securities Exchange Act of 1934 (the
"Exchange Act"), Form 8-A which was declared effective by the
Securities and Exchange Commission registering the Company's
Common Stock under Section 12 of the Exchange Act and all
documents subsequently filed by the Company 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 have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
-------------------------------------
The legality of the securities being registered by this
Registration Statement is being passed upon by Lester Morse P.C.,
111 Great Neck Road, Suite 420, Great Neck, NY 11021, counsel to
the Company. Members of Lester Morse's family own less than 1%
of the issued and outstanding shares of the Company's Common
Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Limitation of Directors' Liability.
- -----------------------------------
The Company's Certificate of Incorporation contains a
provision which, in substance, eliminates the personal liability
of the directors to the Company and its stockholders for monetary
damages for breaches of their fiduciary duties as directors to
the fullest extent permitted by Delaware law. By virtue of this
provision, under current Delaware law a director of the Company
will not be personally liable for monetary damages for breach of
his fiduciary duty, except for liability for (a) breach of his
duty of loyalty to the Company or to its stockholders, (b) acts
or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (c) dividends or stock
repurchases or redemptions that are unlawful under Delaware laws
and (d) any transaction from which he receives an improper
personal benefit. This provision pertains only to breaches of
duty by directors as directors and not in any other corporate
capacity, such as officers, and limits liability only for
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breaches of fiduciary duties under Delaware corporate law and not
for violations of other laws such as the federal securities laws.
As a result of the inclusion of such provision, stockholders may
be unable to recover monetary damages against directors for
actions taken by them that constitute negligence or gross
negligence or that are in violation of their fiduciary duties,
although it may be possible to obtain injunctive or other
equitable relief with respect to such actions. The inclusion of
this provision in the Company's Certificate of Incorporation may
have the effect of reducing the likelihood of derivative
litigation against directors, and may discourage or deter
stockholders or Management from bringing a lawsuit against
directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefitted the
Company and its stockholders.
Indemnification.
- ----------------
The General Corporation Law of Delaware provides generally
that a corporation may indemnify any person who was or is a party
to or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative in nature to procure a judgment
in its favor, 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) and, in a proceeding not by or in the right of
the corporation, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by him in connection with such
suit or proceeding, if he acted in good faith and in a manner
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 reason to believe his conduct was unlawful.
Delaware law further provides that a corporation will not
indemnify any person against expenses incurred in connection with
an action by or in the right of the corporation if such person
shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which such action
or suit was brought shall determine 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 the expenses which such court shall deem proper.
The indemnification and advancement of expenses provided by,
or granted pursuant to Delaware Corporation Law is not be deemed
exclusive of any other rights to which those seeking
indemnification or advance of expenses may be entitled under any
bylaw, agreement, vote of stockholders of disinterested directors
or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office.
Article IX of the Company's By-Laws provides that the
officers and directors of the Company shall be entitled to
indemnification to the maximum extent permitted by Delaware law.
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The Company has entered into indemnification agreements with
its officers and directors (the "Indemnitee") wherein the Company
has agreed to hold such officers and directors harmless and to
indemnify each person from and against any and all judgments,
fines, amounts paid in settlements and expenses, including
attorneys' fees, incurred as a result of or in connection with
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative or as a
result of or in connection with any appeal therein, whether or
not such action, suit proceeding is by or in the right of any
other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or
other enterprise which the Indemnitee serves in any capacity at
the request of the Company, to which Indemnitee is, was or at any
time becomes a party, or is threatened to be made a party or as a
result of or by reason of the fact that Indemnitee is, was or at
any time becomes a director or officer of the Company, or is or
was serving or at any time services such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, in any capacity, whether arising out of any breach of
Indemnitee's fiduciary duty, under any state or federal law or
otherwise as a director or officer of the Company or as a
director, officer, employee or agent of such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise; provided, however, that no indemnity pursuant to the
indemnification agreements shall be paid by the Company (1)
except to the extent the aggregate of losses to be indemnified
exceeds the amount of such losses for which Indemnitee is
actually paid pursuant to any insurance purchased and maintained
by the Company for the benefit of Indemnitee; (2) if judgment or
other final adjudication established that the Indemnitee's acts
were committed in bad faith or were the result of dishonesty so
adjudicated, or that Indemnitee personally gained in fact a
financial profit or other advantage to which Indemnitee was not
legally entitled; or (3) if a final judgment by a court having
jurisdiction in the matter or the Court of Chancery shall
determine that Indemnitee is not entitled to such
indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
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Item 8. EXHIBITS
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The following is a complete list of exhibits filed as a
part of, or incorporated by reference in, this Registration
Statement.
Exhibit No. Document
----------- --------
5 Opinion of Lester Morse
P.C. re legality of shares of
Common Stock being registered.*
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Coopers & Lybrand L.L.P.*
23.3 Consent of Lester Morse P.C.
(Included in Exhibit 5.)*
99.1 1993 Incentive and Non-Statutory
Stock Option Plan of Registrant.
(Incorporated by reference to Exhibit
28.1 contained in the Registrant's
Form S-8 Registration Statement, File
No. 33-73578.)
99.2 1995 Amendment to 1993 Stock Option Plan.*
_______________
*Filed herewith
Item 9. UNDERTAKINGS
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A. To Update Annually
------------------
The undersigned registrant hereby undertakes (1) other
than as provided in the proviso to item 512(a) of Regulation S-K,
to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act, (b) 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, and (c) 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; (2) that for the purpose of
determining any liability under the Securities Act, each such
post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at the 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
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remain unsold at the termination of the offering.
B. Incorporation of Subsequent Securities
Exchange Act of 1934 Documents by Reference
-------------------------------------------
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. Indemnification of Officers and Directors
-----------------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act 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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Pursuant to the requirements of the Securities Act of
1933, this Form S-3 Registration Statement has been signed by
the following persons in the capacities and on the dates
indicated.
Signatures Titles Date
---------- ------ ----
/s/ George Rubin Chairman of the Board, August 16,
----------------- Secretary and Director 1996
George Rubin
/s/ Morry F. Rubin President, Chief Executive August 16,
------------------ Officer, Treasurer and 1996
Morry F. Rubin Director
/s/ Richard L. Pruitt Vice President, Principal August 16,
--------------------- Accounting Officer and 1996
Richard L. Pruitt Director
/s/ Wayne Crosby Chief Financial Officer August 16,
---------------- 1996
Wayne Crosby
/s/ Richard S. Greenberg Director August 16,
------------------------ 1996
Richard S. Greenberg
/s/ Julia S. Heckman Director August 16,
-------------------- 1996
Julia S. Heckman
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EXHIBIT 5
OPINION OF LESTER MORSE P.C.
RE: LEGALITY OF SHARES OF COMMON STOCK BEING REGISTERED
LESTER MORSE P.C.
111 Great Neck Road, Suite 420
Great Neck, NY 11021
Telephone (516) 487-1446
Telecopier (516) 487-1452
Exhibit 5
ATC Environmental Inc. August 13, 1996
104 East 25th Street, 10th Floor
New York, NY 10010
Re: Registration Statement on Form S-8
of ATC Environmental Inc.
----------------------------------
Gentlemen:
You have requested our opinion as counsel for ATC
Environmental, Inc., a Delaware corporation (the "Company"),
in connection with the Registration Statement on Form S-8
(the "Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933 (the "Act') with respect to
shares (the "Shares") of Common Stock, par value $.01 per
share, of the Company which may be issued pursuant to the
exercise of options granted or to be granted under the
Company's 1993 Incentive and Non-Statutory Stock Option Plan
(the "Plan").
We have examined such corporate records and other
documents and have made such examination of law as we have
deemed relevant in connection with this opinion.
Based upon the foregoing, we advise you that in our
opinion each authorized but unissued Share issued by the
Company in accordance with the terms of the Plan, upon
exercise of options properly granted or to be granted under
such Plan, is duly authorized, and, when (a) the applicable
provisions of such "blue sky" and securities laws as may be
applicable have been complied with and (b) each such Share
has been delivered in accordance with the terms of such
Plan, assuming no change in the applicable law or pertinent
facts, each such Share will be legally issued, fully paid,
and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement, and we further
consent to the use of our name therein under the caption
"Interests of Named Experts and Counsel," in Part II of the
Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Act or the rules
and regulations of the Commission thereunder.
Very truly yours,
LESTER MORSE P.C.
Steven Morse
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EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement ATC Environmental Inc. on Form S-8
of our report dated May 6, 1996 (May 28, 1996 as to Note M)
appearing in the Annual Report on Form 10-K, as amended,
of ATC Environmental Inc. for the year ended February 29,
1996, and our report dated April 26, 1996 on financial
statements of 3D Information Services appearing on Form
8-K dated May 24, 1996, as amended, incorporated by
reference herein.
Deloitte & Touche LLP
Omaha, Nebraska
August 16, 1996
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EXHIBIT 23.2
CONSENT OF COOPERS AND LYBRAND L.L.P
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Consent of Independent Accountants
We consent to the incorporation by reference in this
Registration Statement of ATC Environmental, Inc. (ATC)
on Form S-8 (File No. 333-0000) of our report dated March
15, 1996 (May 23, 1996 as to Notes 1 and 5) on our audits
of the consolidated financial statements of American
Testing and Engineering Corporation as of December 31,
1995 and 1994, and for the years then ended, and of our
report dated March 31, 1995 (May 4, 1995 as to Note 4),
on our audits of the consolidated financial statements of
American Testing and Engineering Corporation as of
December 31, 1994 and 1993 and September 30, 1993 and for
the year ended December 31, 1994, the three months ended
December 31, 1993, and the year ended September 30, 1993,
incorporated by reference herein to ATC's report on Form
8-K dated May 24, 1996, as amended.
Coopers & Lybrand L.L.P.
Indianapolis, Indiana
August 16, 1996
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EXHIBIT 99.2
AMENDMENT TO 1993 STOCK OPTION PLAN
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AMENDMENT TO 1993 STOCK OPTION PLAN
Section 3 of the 1993 Incentive and Non-Statutory Stock
Option Plan is amended to read as follows:
3. Stock Subject to Plan.
----------------------
Subject to the provisions of paragraph 12 hereof, there
shall be reserved for issuance or transfer upon the exercise
of Options to be granted from time to time Under the Plan an
aggregate of 500,000 shares of Common Stock, which shares
may be in whole or in part, as the Board of Directors of the
Company shall from time to time determine, authorized and
unissued shares of Common Stock or issued shares of Stock
which shall have been reacquired by the Company. If any
Option granted under the Plan shall expire or terminate for
any reason without having been exercised in full, the
unpurchased shares subject thereto shall again be available
for the purposes of the Plan.
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