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As Filed with the Securities and Exchange Commission on May 13, 1996
File 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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OMEGA ENVIRONMENTAL, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 91-1499751
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) ID No.)
19805 North Creek Parkway
Bothell, Washington 98041
(Address of Principal Executive Offices)
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
LOUIS J. TEDESCO, PRESIDENT
OMEGA ENVIRONMENTAL, INC.
19805 North Creek Parkway
Bothell, Washington 98041
(Name and Address of Agent for Service)
Telephone Number, Including Area Code,
of Agent for Service: (206) 486-4800
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1993, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following line: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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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
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.0025 par value(1) 1,000,000 shs $3.00(2) $3,000,000 $1,034.48
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</TABLE>
(1) Includes the options, issued or issuable for such common stock.
(2) Calculated pursuant to Rule 457(h).
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company under
the Securities Act of 1933 or the Securities Exchange Act of 1934 (the "Act")
with the Securities and Exchange Commission are incorporated herein by
reference.
(1) The Company's Annual Report Form 10-K for the fiscal
year ended March 31, 1995;
(2) The Company's Quarterly Report on Form 10-Q for the
quarters ended June 30, 1995, September 30, 1995, and
December 31, 1995;
(3) The Company's Registration Statement on Form 8-A,
dated May 27, 1992.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities covered hereby then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents, except as to any portion of any future Annual
or Quarterly Report to Stockholders which is not deemed to be filed under said
provisions. Any statement made in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that such statement is replaced or modified by a
statement contained in a subsequently dated document incorporated by reference
or contained in this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock is registered under Section 12 of the
Securities Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware General Corporation Law Section 145 provides that the
Registrant may indemnify any officer or director who was made a party to a suit
because of his position, including derivative suits, if he was acting in good
faith and in a manner he reasonably believed was in the best interest of the
Registrant, except, in certain circumstances, for negligence or misconduct in
the performance of his duty to the Registrant. If the director or officer is
successful in his suit he is entitled to indemnification for expenses, including
attorney fees. The Company's Certificate of Incorporation eliminates director's
liability to stockholders or the Company for monetary damages arising out of
certain breaches by the directors of their fiduciary duty of care. Finally,
Article Ninth of the Registrant's Certificate of Incorporation eliminates
director's liability to stockholders or the Company for monetary damages arising
out of certain breaches by the directors of their fiduciary duty of care.
Finally, Article Ninth of the Registrant's Certificate of Incorporation and
Article III, Section 13, of the Registrant's ByLaws provides for indemnification
of the Registrant's officers and directors, except in case of gross
S-1
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negligence or willful misconduct, if they are a party to an action because they
were an officer or director. The Company also has indemnification agreements
with the officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
5. Opinion of Jeffer, Mangels, Butler & Marmaro, LLP
15. Letter of KPMG Peat Marwick, LLP
24.1 Consent of KPMG Peat Marwick, LLP
24.2 Consent of Jeffer, Mangels, Butler & Marmaro, LLP (See Exhibit 5)
</TABLE>
ITEM 9. UNDERTAKINGS
A. Rule 415 Offering.
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; and
(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 or Form
S-8 and 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.
(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.
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B. Filings incorporating subsequent Exchange Act 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 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.
S-3
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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
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf of the undersigned, thereunto duly
authorized, in the City of Bothell, State of Washington, on the 8th day of May,
1995.
OMEGA ENVIRONMENTAL, INC.
By: /S/ Louis J. Tedesco
-------------------------------------
LOUIS J. TEDESCO
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------- ----------------------------------------------- ----------------
<S> <C> <C>
/S/ Louis J. Tedesco Chief Executive Officer, May 8, 1996
- ------------------------------------------------- President and Director (Principal
LOUIS J. TEDESCO Executive Officer)
/S/ Leo L. Azure, Jr. Chairman of the Board of Directors May 8, 1996
- -------------------------------------------------
LEO L. AZURE, JR.
/S/ Dan E. Steigerwald Chief Financial Officer (Principal May 8, 1996
- ------------------------------------------------- Financial Officer)
DAN E. STEIGERWALD
/S/ Bradley S. Powell Corporate Controller (Principal May 8, 1996
- ------------------------------------------------- Accounting Officer)
BRADLEY S. POWELL
/S/ Edgar S. Brower Director May 9, 1996
- -------------------------------------------------
EDGAR S. BROWER
/S/ Douglas R. Rogers Director May 8, 1996
- -------------------------------------------------
DOUGLAS R. ROGERS
/S/ Edward J. O'Sullivan Director May 9, 1996
- -------------------------------------------------
EDWARD J. O'SULLIVAN
/S/ Steve Sarich, Jr. Director May 9, 1996
- -------------------------------------------------
STEVE SARICH, JR.
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Description Pages
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<S> <C> <C>
5. Opinion of Jeffer, Mangels, Butler
& Marmaro, LLP re legality
15. Letter of KPMG Peat Marwick, LLP
24.1 Consent of KPMG Peat Marwick, LLP
</TABLE>
<PAGE> 1
EXHIBIT 5
[Jeffer, Mangels, Butler & Marmaro LLP Letterhead]
May 13, 1996 55776-0001
Omega Environmental, Inc.
19805 North Creek Parkway
Bothell, Washington 98041
Re: Omega Environmental, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we have examined the Registration Statement
on Form S-8 (the "Registration Statement") which Omega Environmental, Inc., a
Delaware corporation (the "Company"), proposes to file with the Securities and
Exchange Commission.
The Registration Statement covers 1,000,000 shares
(the "Shares") of the Company's common stock to be issued under the Company's
1995 Employee Stock Purchase Plan (the "Plan").
In rendering the following opinion, we have examined and
relied only upon the documents and certificates of public officials as are
specifically described below. In our examination, we have assumed the
genuineness of all signatures, the authenticity, accuracy and completeness of
the documents submitted to us as originals, and the conformity with the original
documents of all documents submitted to us as copies. Our examination was
limited to the following documents and no others:
1. Certificate of Incorporation of the Company, as
amended to date;
2. By-Laws of the Company, as amended to date;
3. Resolutions adopted by the Board of Directors of
the Company approving and adopting the Plan, and authorizing the
issuance of the Shares;
4. Resolutions adopted by the Shareholders of the
Company approving the adoption of the Plan;
5. The Plan;
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JEFFER, MANGELS, BUTLER & MARMARO LLP
Omega Environmental, Inc.
May 13, 1996
Page 2
6. The form of the Company's Common Stock
certificate; and
7. The Registration Statement, together with all
amendments thereto, exhibits filed in connection therewith and form of
Prospectus contained therein.
We have not undertaken, nor do we intend to undertake, any
independent investigation beyond such documents and records, or to verify the
adequacy or accuracy of same.
Based upon and subject to the foregoing, it is our opinion
that the Shares to be issued upon Plan have been duly authorized, and, when so
issued upon (i) such exercise against payment therefor pursuant to the Plan;
(ii) the effectiveness of the Registration Statement; and (iii) compliance with
applicable blue sky laws, will constitute legally issued, fully paid and
nonassessable shares of the common stock of the Company.
We express no opinion as to compliance with the securities or
"blue sky" laws of any state in which the Shares are proposed to be offered and
sold or as to the effect, if any, which non-compliance with such laws might have
on the validity of issuance of the Shares.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement; to the filing of this opinion in connection with
such filings of applications by the Company as may be necessary to register,
qualify or establish eligibility for an exemption from registration or
qualification of the Securities under the blue sky laws of any state or other
jurisdiction; and to the reference, if any, to this firm in the Prospectus under
the heading "Legal Opinion". In giving this consent, we do not admit that we are
in 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
Commission promulgated thereunder.
Other than as provided in the preceding sentence, this opinion
(i) is addressed solely to you, (ii) may not be relied upon by any other party,
(iii) may not be quoted or reproduced or delivered by you to any other person,
and (iv) may not be relied upon for any other purpose whatsoever. Nothing herein
shall be deemed to relate to or constitute an opinion concerning any matters not
specifically set forth above.
<PAGE> 3
JEFFER, MANGELS, BUTLER & MARMARO LLP
Omega Environmental, Inc.
May 13, 1996
Page 3
The opinions set forth herein are based upon the federal laws
of the United States of America, the laws of the State of California and the
corporate laws of the State of Delaware, all as now in effect. We express no
opinion as to whether the laws of any particular jurisdiction apply, and no
opinion to the extent that the laws of any jurisdiction other than those
identified above are applicable to the subject matter hereof.
The information set forth herein is as of the date of this
letter. We disclaim any undertaking to advise you of changes which may be
brought to our attention after the effective date of the Registration Statement.
Very truly yours,
JEFFER, MANGELS, BUTLER & MARMARO LLP
RPG:wpc
<PAGE> 1
EXHIBIT 15
Omega Environmental, Inc.
Bothell, Washington
Ladies and Gentlemen:
With respect to the subject registration statement, we acknowledge our
awareness of the use therein of our review reports dated August 14, 1995,
November 13, 1995 and February 13, 1995, related to our review of interim
financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports
are not considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of Sections 7 and 11 of the Act.
Very truly yours,
KPMG Peat Marwick LLP
Seattle, Washington
May 9, 1996
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EXHIBIT 24.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Omega Environmental, Inc.:
We consent to the use of our report dated June 2, 1995 on the
consolidated financial statements of Omega Environmental, Inc. and subsidiaries
(Company) as of March 31, 1995 and 1994, and for each of the years in the
three-year period ended March 31, 1995, incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
Our report dated June 2, 1995, on the consolidated financial statements
of Omega Environmental, Inc. and subsidiaries as of and for the year ended March
31, 1995, contains an explanatory paragraph that states that the Company has
incurred significant losses since inception and operations have not generated
sufficient cash to cover current obligations. These matters raise substantial
doubt about the Company's ability to continue as a going concern. The
consolidated balance sheet as of March 31, 1995, does not include any
adjustments that might result from the outcome of that uncertainty.
KPMG Peat Marwick LLP
Seattle, Washington
May 9, 1996
S-5
