As filed with the Securities and Exchange Commission on July __, 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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ATC GROUP SERVICES 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)
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ATC GROUP SERVICES INC.
1993 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
(Full title of the Plans)
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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 and a Post-Effective
Amendment to the Registrant's Form S-8 Registration Statement, File No.
333-10547 which relates to an additional 300,000 shares underlying the
Registrant's 1993 Incentive and Non-Statutory Stock Option Plan.
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Each Maximum Maximum Amount of
Class of Offering Aggregate Registra-
Securities to Amount to be Price Per Offering tion Fee
be Registered Registered Share (3) Price (3) (3)
(1)
Common Stock, 500,000 $ 11.00 $5,500,000 $ 1,666.67
Par Value $.01 (1)(2)
Per Share
Total $5,500,000 $ 1,666.67
</TABLE>
- --------------
(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. These 300,000 shares
were registered in the Registrant's Form S-8, File No. 333-
10547. In 1996, the Board of Directors and stockholders
approved a 500,000 share increase in the 1993 Plan. This
Registration Statement, which acts as a Post-Effective
Amendment to File No. 33-73578 and File No. 333-10547,
registers the additional 500,000 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 within five
business days of the filing date of this Form S-8.
2
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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 28,
1997, as amended, Form 8-K/A-2 (date of earliest event - May 24, 1996) and Form
10-Q for the quarter ended May 31, 1997 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 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
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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.
5
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Item 8. EXHIBITS
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.*
23.2 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.(Incorporated by reference to
Exhibit 99.2 contained in the
Registrant's Form S-8 Registration
Statement, File No. 333-10547).
99.3 1996 Amendment to 1993 Stock Option Plan.
(Incorporated by reference to
Exhibit 99.3 contained in the
Registrant's Form 10-K for its fiscal
year February 28, 1997.)
- ---------------
*Filed herewith
Item 9. UNDERTAKINGS
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
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<PAGE>
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 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.
7
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York on the 23rd day of
July, 1997.
ATC Group Services Inc.
By: /s/ Morry F. Rubin
---------------------------------
Morry F. Rubin, President
Pursuant to the requirements of the Securities Act of 1933, this Form
S-8 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,
- ------------------------ Secretary and Director July 23, 1997
George Rubin
President, Chief
Executive
/s/ Morry F. Rubin Officer, Treasurer and
- ------------------------- Director July 23,1997
Morry F. Rubin
Vice President,
Principal
/s/ Richard L. Pruitt Accounting Officer and
- ------------------------ Director July 23, 1997
Richard L. Pruitt
/s/ Wayne Crosby Chief Financial
- ------------------------ Officer July 23, 1997
Wayne Crosby
/s/ Richard S. Greenberg
- ------------------------
Richard S. Greenberg Director July 23, 1997
/s/ Julia S. Heckman
- ------------------------
Julia S. Heckman Director July 23, 1997
A-1
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
ATC GROUP SERVICES INC.
A-2
<PAGE>
EXHIBIT 5
OPINION OF LESTER MORSE P.C.
RE: LEGALITY OF SHARES OF COMMON STOCK BEING REGISTERED
A-3
<PAGE>
Exhibit 5
ATC Group Services Inc. July 23, 1997
104 East 25th Street, 10th Floor
New York, NY 10010
Re: Registration Statement on Form S-8
of ATC Group Services 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
A-4
<PAGE>
EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE
A-5
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ATC Group Services Inc. on Form S-8 of (i) our report dated May 22, 1997 (May
29, 1997, as to Notes B and D), appearing in the Annual Report on Form 10-K, as
amended, of ATC Group Services Inc. for the year ended February 28, 1997 and
(ii) our report dated January 31, 1997 (June 25, 1997 as to Note 11) on the
financial statements of American Testing and Engineering Corporation appearing
in the report on Form 8-K/A#2 (date of earliest event reported - May 24, 1996),
incorporated by reference herein.
DELOITTE & TOUCHE LLP
Omaha, Nebraska
July 23, 1997
A-6
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