aec_s8-022609.htm
As
filed with the Securities and Exchange Commission on February 26,
2009.
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
AMERICAN
ECOLOGY CORPORATION
(Exact
name of Registrant as specified in its charter)
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Delaware
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Lakepointe
Centre I
300
E. Mallard, Suite 300
Boise,
Idaho 83706
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95-3889638
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(State
of Incorporation)
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(Address
of principal executive offices) (Zip Code)
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(I.R.S.
Employer
Identification
No.)
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AMERICAN
ECOLOGY CORPORATION
2008
STOCK OPTION INCENTIVE PLAN
(Full
Title of the Plan)
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Jeffrey
R. Feeler
Vice
President and
Chief
Financial Officer
Lakepointe
Centre I, 300 E. Mallard, Suite 300
Boise,
ID 83706
(Name
and address of agent for service)
(208)
331-8400
(Telephone
number, including area code, of agent for service)
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Copies
of all communications to:
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Stephen
Leitzell, Esq.
Dechert
LLP
Cira
Centre
2929
Arch Street
Philadelphia,
Pennsylvania 19104
(215)
994-4000
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Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
(Check one):
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Large
accelerated filer o
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Accelerated
filer x
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Non-accelerated
filer o
(Do
not check if a smaller reporting company)
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Smaller reporting company
o
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price per share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount
of
registration
fee
|
|
Common
Stock,
par
value $0.01 per share
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1,500,000
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$17.63
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$26,445,000
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$1,475.63
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(1)
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Pursuant to Rule
416(a) of the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement (the “Registration Statement”) shall
also cover any additional shares of common stock of American Ecology
Corporation (the “Registrant”) which become issuable under the
Registrant’s 2008 Stock Option Incentive Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of the Registrant.
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(2)
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Estimated
pursuant to Rule 457(c) of the Securities Act, solely for the purposes of
calculating the registration fee, based upon the average of the reported
high and low sales prices for a share of the Registrant’s common stock on
February 19, 2009 as reported on the NASDAQ Global Select
Market.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
Registrant will send or give documents containing the information specified by
Part I of this Registration Statement to participants in the 2008 Stock
Option Incentive Plan to which this Registration Statement relates, as specified
in Rule 428(b)(1) promulgated by the Securities and Exchange Commission
(the “Commission”) under the Securities Act. The Registrant is not
filing such documents with the Commission, but these documents constitute (along
with the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents, as originally filed with the Commission by the Registrant,
are incorporated herein by reference:
(a) The
Registrant’s annual report on Form 10-K for the fiscal year ended December 31,
2008, filed on February 25, 2009, pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the “Exchange Act”); and
(b) The
description of the Registrant’s common stock contained in the registration
statement filed under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description; and
(c) All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement, which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, will be deemed to be incorporated by reference into this Registration
Statement. Each document incorporated by reference into this
Registration Statement will be deemed to be a part of this Registration
Statement from the date of the filing of such document with the Commission,
until the information contained in such document is superseded or updated by any
subsequently filed document which is incorporated by reference into this
Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
We have broad powers to indemnify
directors and officers against liabilities they may incur in these capacities
under the Delaware General Corporation Law (the “DGCL”). Our Restated
Certificate of Incorporation requires that we indemnify officers and directors
and eliminates directors’ liability to American Ecology for monetary damages, in
each case to the full extent allowed under the DGCL.
Section 145(a) of the DGCL
provides that a corporation may 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 such person 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 or enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she 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 or her conduct was unlawful.
Section 145(b) of the DGCL
provides that a Delaware corporation may 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 such person in connection with the defense
or settlement of such action or suit if he or she acted under similar standards,
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 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 be indemnified for such expenses which the court shall
deem proper.
Section 145
of the DGCL further provides that (i) to the extent that a former or
present director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to in subsections (a) and
(b) or in the defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by him or her in connection therewith;
(ii) indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and (iii) the corporation may purchase and maintain insurance on behalf of
any present or former director, officer, employee or agent of the corporation or
any person who at the request of the corporation was serving in such capacity
for another entity against any liability asserted against such person and
incurred by him or her in any such capacity or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him or
her against such liabilities under Section 145.
Article Seven
of our Restated Certificate of Incorporation requires that we indemnify to the
full extent permitted by the DGCL any person for liabilities incurred in his or
her capacity as a director or officer of the Company, including service at our
request in any capacity at another entity. We are obligated to pay in advance
the person’s expenses incurred in defending any proceeding in advance if the
person agrees to repay the advance if it is determined ultimately that he or she
is not entitled to be indemnified.
Article Seven also provides that
the personal liability of our directors to the Company or its stockholders for
monetary damages for any breach of fiduciary duty by the director as a director
is limited or eliminated to the fullest extent permitted by the
DGCL.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The following exhibits are filed
herewith or incorporated by reference as part of this Registration
Statement:
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Exhibit Number
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Description
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4.1
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American
Ecology Corporation 2008 Stock Option Incentive Plan (filed as Exhibit A
to the Registrant’s Definitive Proxy Statement on Schedule 14A filed on
April 10, 2008, and incorporated by reference
herein)
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5.1
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Opinion
of Dechert LLP (counsel to the Registrant) as to the legality of the
securities being registered.
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23.1
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Consent
of Moss Adams LLP.
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23.2
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Consent
of Dechert LLP (contained in the opinion filed as Exhibit 5.1 to this
Registration Statement).
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24.1
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Power
of Attorney (set forth on the signature page of this Registration
Statement).
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Item
9. Undertakings
A. Undertakings required by
Item 512(a) of Regulation S-K
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 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.
(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) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
i. If
the Registrant is relying on Rule 430B:
A. Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
B. Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date
of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering
of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date;
or
ii. If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first
use.
(5) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
i. Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
ii. Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
iii. The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
iv. Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
B. Undertakings required by
Item 512(b) of Regulation S-K
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. Undertakings required by
Item 512(h) of Regulation S-K
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 Boise, State of Idaho, on February 25,
2009.
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AMERICAN
ECOLOGY CORPORATION
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By: /s/
Jeffrey R.
Feeler
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Jeffrey
R. Feeler
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Vice
President and Chief Financial Officer (Principal Financial
Officer)
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POWER
OF ATTORNEY
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
on Form S-8 and the foregoing Power of Attorney have been signed by the
following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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/s/ Stephen A.
Romano
Stephen
A. Romano
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Chief
Executive Officer and Chairman (Principal Executive
Officer)
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February
25, 2009
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/s/ Jeffrey R.
Feeler
Jeffrey
R. Feeler
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Vice
President and Chief Financial Officer (Principal Financial
Officer)
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February
25, 2009
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/s/ Victor J.
Barnhart
Victor
J. Barnhart
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Director
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February
25, 2009
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/s/ Joe F.
Colvin
Joe
F. Colvin
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Director
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February
25, 2009
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/s/ Roy C.
Eliff
Roy
C. Eliff
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Director
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February
25, 2009
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/s/ Edward F.
Heil
Edward
F. Heil
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Director
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February
25, 2009
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/s/ Jeffrey S.
Merrifield
Jeffrey
S. Merrifield
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Director
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February
25, 2009
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/s/ John W.
Poling
John
W. Poling
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Director
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February
25, 2009
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Exhibit
Index
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Exhibit
Number
|
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Description
|
| |
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4.1
|
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American
Ecology Corporation 2008 Stock Option Incentive Plan (filed as Exhibit A
to the Registrant’s Definitive Proxy Statement on Schedule 14A filed on
April 10, 2008, and incorporated by reference
herein)
|
| |
|
|
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5.1
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Opinion
of Dechert LLP (counsel to the Registrant) as to the legality of the
securities being registered.
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| |
|
|
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23.1
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Consent
of Moss Adams LLP
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23.2
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Consent
of Dechert LLP (contained in the opinion filed as Exhibit 5.1 to this
Registration Statement).
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24.1
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Power
of Attorney (included in Signature
Page).
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