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As filed with the Securities and Exchange Commission on June 17, 1996.
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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SIPEX CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-6135748
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
22 Linnell Circle
Billerica, Massachusetts 01821
(508) 667-8700
(Address of Principal Executive Offices) (Zip Code)
----------------------
1988 Non-Statutory Stock Option Plan
1991 Non-Statutory Stock Option Plan
1993 Stock Option and Incentive Plan
1994 Stock Option and Incentive Plan
1996 Incentive Stock Option Plan
1996 Non-Employee Director Stock Option Plan
1996 Employee Stock Purchase Plan
(Full title of the plans)
----------------------
James E. Donegan
President and Chief Executive Officer
SIPEX Corporation
22 Linnell Circle
Billerica, Massachusetts 01821
(508) 667-8700
(Name and address including zip code and telephone number,
including area code, of agent for service)
----------------------
Copy to:
Timothy C. Maguire, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower, 125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=================================================================================
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share Price Fee
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1988 NON-STATUTORY STOCK
OPTION PLAN
Common Stock (Par Value $.01) 500 $11.00(1) $ 5,500 $ 1.90
1991 NON-STATUTORY STOCK
OPTION PLAN
Common Stock (Par Value $.01) 211,654 $ 0.40(1) $ 84,662 $ 29.19
1993 STOCK OPTION AND
INCENTIVE PLAN
Common Stock (Par Value $.01) 91,250 $ 0.40(1) $ 36,500 $ 12.59
1994 STOCK OPTION AND
INCENTIVE PLAN
Common Stock (Par Value $.01) 444,913 $ 0.40(1) $ 177,965 $ 61.37
1996 INCENTIVE STOCK
OPTION PLAN
Common Stock (Par Value $.01) 600,000 $18.19(2) $10,914,000 $3,763.45
1996 NON-EMPLOYEE
DIRECTOR STOCK OPTION PLAN
Common Stock 50,000 $ 9.50(1) $ 475,000 $ 163.79
(Par Value $.01) 100,000 $18.19(2) $ 1,819,000 $ 627.24
1996 EMPLOYEE STOCK PURCHASE
PLAN
Common Stock (Par Value $.01) 250,000 $18.19(2) $ 4,547,500 $1,568.10
TOTAL: 1,748,317 $6,227.63
- ---------------------------------------------------------------------------------
<FN>
(1) All such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Regulation C, Rule 457(h)(1) under the
Securities Act of 1933, as amended, the aggregate offering price and the fee
have been computed upon the basis of the price at which the options may be
exercised.
(2) The price of $18.19 per share, which is the average of the high and low
prices of the common stock of the registrant reported on the Nasdaq National
Market on June 12, 1996, is set forth solely for purposes of calculating the
filing fee pursuant to Rule 457(c) and (h) and has been used only for those
shares without a fixed exercise price.
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
-----------------
The documents containing the information specified in this Item 1 will be
sent or given to employees, directors or others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions to Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
------------------------------------------------------------
The documents containing the information specified in this Item 2 will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated April 2, 1996 as filed with the
Commission pursuant to Rule 424(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act"), on April 3, 1996; and
(b) The section entitled "Description of Registrant's Securities to be
Registered," contained in the Registrant's Registration Statement on
Form 8-A, filed on March 1, 1996 pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed with the Commission 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 which indicates that all securities
offered herein 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 of such documents.
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Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Massachusetts General Laws Chapter 156B, Section 67 provides that a
corporation may indemnify its directors and officers to the extent specified in
or authorized by (i) the articles of organization, (ii) a by-law adopted by the
shareholders, or (iii) a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors. In all instances, the
extent to which a corporation provides indemnification to its directors and
officers under Section 67 is optional. Massachusetts General Laws Chapter 156B,
Section 67 forbids the indemnification of any person with respect to any matter
to which he shall have been adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the corporation.
The Company's Restated By-Laws indemnifies the directors and officers
against liabilities arising out of legal proceedings brought against them by
reason of their status as directors and officers or by reason of their agreeing
to serve, at the request of the Company, as a director or officer of another
organization. Under the Restated By-Laws, each director and officer shall be
indemnified by the Company for all costs and expenses (including attorneys'
fees), judgments, liabilities and amounts paid in settlement of such
proceedings, even if he is not successful on the merits, if he acted in good
faith in the reasonable belief that his action was in the best interest of the
Company. The Board of Directors may authorize advancing litigation expenses to a
director or officer at his request upon receipt of an undertaking by such
director or officer to repay such expenses if it is ultimately determined that
he is not entitled to indemnification for such expense. The Restated By-Laws
provide that the directors and officers of the Company shall be indemnified by
the Company to the fullest extent authorized by Massachusetts Law, as it now
exists or may in the future be amended. In addition, the Restated Articles
provide that the directors of the Company will not be personally liable for
monetary damages to the Company for breaches of their fiduciary duty as
directors, unless they violated their duty of loyalty to the Company or its
shareholders, acted in bad faith, knowingly or intentionally violated the law,
authorized illegal dividends or redemptions or derived an improper personal
benefit from their action as directors.
The Company has entered into separate indemnification agreements with each
of its directors and executive officers, whereby the Company agreed, among other
things, (i) to indemnify them to the fullest extent permitted by the Business
Corporation Law of the Commonwealth of Massachusetts, subject to specified
limitations, against certain liabilities actually and reasonably incurred by
them in any proceedings in which they are a party that may arise by reason of
their status as directors, officers, employees or agents or may arise by reason
of their serving as such at the request of the Company for another entity and
(ii) to advance their expenses incurred as a result of any proceeding against
them as to which they could be indemnified. The Company intends to enter into
similar separate indemnification agreements with any directors or officers who
may join the Company in the future.
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Item 7. Exemption From Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Description of Exhibit
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Exhibit 4.1 Restated Articles of Organization of the Registrant
(filed as Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1, File No. 333-1328, and
incorporated herein by reference).
Exhibit 4.2 Restated By-Laws of the Registrant (filed as Exhibit
3.3 to the Registrant's Registration Statement on Form
S-1, File No. 333-1328, and incorporated herein by
reference).
Exhibit 4.3 Specimen certificate representing the Common Stock
of the Registrant (filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1, File
No. 333-1328, and incorporated herein by reference).
Exhibit 4.4 1988 Non-Statutory Stock Option Plan (filed as
Exhibit 10.1 to the Registrant's Registration Statement
on Form S-1, File No. 333-1328, and incorporated herein
by reference).
Exhibit 4.5 1991 Non-Statutory Stock Option Plan (filed as
Exhibit 10.2 to the Registrant's Registration Statement
on Form S-1, File No. 333-1328, and incorporated herein
by reference).
ExhibiT 4.6 1993 Stock Option and Incentive Plan (filed as
Exhibit 10.3 to the Registrant's Registration Statement
on Form S-1, File No. 333-1328, and incorporated herein
by reference).
Exhibit 4.7 1994 Stock Option and Incentive Plan (filed as
Exhibit 10.4 to the Registrant's Registration Statement
on Form S-1, File No. 333-1328, and incorporated herein
by reference).
Exhibit 4.8 1996 Incentive Stock Option Plan (filed as Exhibit
10.5 to the Registrant's Registration Statement on Form
S-1, File No. 333-1328, and incorporated herein by
reference).
Exhibit 4.9 1996 Non-Employee Director Stock Option Plan (filed
as Exhibit 10.6 to the Registrant's Registration
Statement on Form S-1, File No. 333-1328, and
incorporated herein by reference).
<PAGE> 6
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Exhibit 4.10 1996 Employee Stock Purchase Plan (filed as Exhibit
10.7 to the Registrant's Registration Statement on Form
S-1, File No. 333-1328, and incorporated herein by
reference).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith).
Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in
Exhibit 5.1).
Exhibit 23.2 Consent of KPMG Peat Marwick LLP (filed herewith).
Exhibit 23.3 Consent of Ernst & Young LLP (filed herewith).
Exhibit 24.1 Power of Attorney (included as part of the signature
page to this Registration Statement).
Item 9. Undertakings.
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(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 with
or furnished to the Commission 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,
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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.
(b) 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) 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 Securities Act of 1933 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 8
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, SIPEX Corporation, 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 Town of Billerica, Commonwealth
of Massachusetts, on this 17th day of June, 1996.
SIPEX Corporation
By: /s/ James E. Donegan
-----------------------------------
James E. Donegan
Chairman, Chief Executive Officer,
President and Clerk
POWER OF ATTORNEY
We, the undersigned officers and directors of SIPEX Corporation hereby
severally constitute and appoint James E. Donegan and Frank R. DiPietro, and
each of them singly, our true and lawful attorneys, with full power to them and
each of them singly, to sign for us in our names in the capacities indicated
below, any amendments to this Registration Statement on Form S-8 (including
post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable SIPEX Corporation to comply with
the provisions of the Securities Act of 1933, as amended, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and all amendments thereto.
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 dates indicated.
SIGNATURE TITLE(S) DATE
--------- -------- ----
/s/ James E. Donegan President, Chief June 17, 1996
---------------------------- Executive Officer
James E. Donegan (Principal Executive
Officer) and Clerk
<PAGE> 9
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SIGNATURE TITLE(S) DATE
--------- -------- ----
/s/ Frank R. DiPietro Senior Vice President, June 17, 1996
- ------------------------------- Chief Financial
Frank R. DiPietro Officer and
Treasurer (Principal
Financial Officer
and Principal
Accounting Officer)
/s/ Daniel Deroux Director June 17, 1996
- -------------------------------
Daniel Deroux
/s/ Manfred Loeb Director June 17, 1996
- -------------------------------
Manfred Loeb
/s/ Lionel H. Olmer Director June 17, 1996
- -------------------------------
Lionel H. Olmer
/s/ John L. Sprague Director June 17, 1996
- -------------------------------
John L. Sprague
/s/Philippe van Marcke Director June 17, 1996
- -------------------------------
Philippe van Marcke
<PAGE> 10
Exhibit Index
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Exhibit No. Description of Exhibit Page Number
----------- ---------------------- -----------
4.1* Restated Articles of Organization of the Registrant
4.2* Restated By-Laws of the Registrant
4.3* Specimen certificate representing the Common Stock
of the Registrant
4.4* 1988 Non-Statutory Stock Option Plan
4.5* 1991 Non-Statutory Stock Option Plan
4.6* 1993 Stock Option Plan and Incentive Plan
4.7* 1994 Stock Option and Incentive Plan
4.8* 1996 Incentive Stock Option Plan
4.9* 1996 Non-Employee Director Stock Option Plan
4.10* 1996 Employee Stock Purchase Plan
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Ernst & Young LLP
24.1 Power of Attorney (included as part of the signature page
to this Registration Statement)
- ----------
* Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-1, No. 333-1328
<PAGE> 1
Exhibit 5.1
<PAGE> 2
[TESTA, HURWITZ & THIBEAULT, LLP LETTERHEAD]
June 17, 1996
SIPEX Corporation
22 Linnell Circle
Billerica, Massachusetts 01821
Re: Registration Statement on Form S-8 Relating to the 1988 Non-Statutory
Stock Option Plan, the 1991 Non-Statutory Stock Option Plan, the 1993
Stock Option and Incentive Plan, the 1994 Stock Option and Incentive
Plan, the 1996 Incentive Stock Option Plan, the 1996 Non-Employee
Director Stock Option Plan, and the 1996 Employee Stock Purchase Plan
of SIPEX Corporation (all of the foregoing are hereinafter referred
to collectively as the "Plans")
----------------------------------------------------------
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form S-8
(the "Registration Statement") filed by SIPEX Corporation (the "Company") on the
date hereof with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to an aggregate of 1,748,317 shares of Common
Stock, $.01 par value, of the Company issuable pursuant to the Plans (the
"Shares").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the Restated Articles of Organization
and the Restated By-Laws of the Company, the minute books and stock records of
the Company and originals of such other documents, certificates and proceedings
as we have deemed necessary for the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
related Plan, the terms of any option granted thereunder and the terms of any
related agreements with the Company, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
Exhibit 23.2
<PAGE> 2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Stockholders
SIPEX Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of SIPEX Corporation of our report dated February 12, 1996, relating to the
consolidated balance sheet of SIPEX Corporation as of December 31, 1995 and the
related consolidated statements of operations, shareholders equity (deficit),
and cash flows for the year ended December 31, 1995, which report appears in the
Company's prospectus dated April 2, 1996.
/s/ KPMG Peat Marwick LLP
Boston, Massachusetts
June 14, 1996
<PAGE> 1
Exhibit 23.3
<PAGE> 2
Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1988 Non-Statutory Stock Option Plan, 1991
Non-Statutory Stock Option Plan, 1993 Stock Option and Incentive Plan, 1994
Stock Option and Incentive Plan, 1996 Incentive Stock Option Plan, 1996
Non-Employee Director Stock Option Plan, and 1996 Employee Stock Purchase Plan
of our reports dated February 3, 1995 and January 31, 1994 with respect to the
consolidated financial statements of Sipex Corporation for the year ended
December 31, 1994 and 1993, respectively, included in the Registration
Statement (Form S-1 No. 333-1328) filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
June 14, 1996
