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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
RITCHIE BROS. AUCTIONEERS INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CANADA NOT APPLICABLE
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
9200 BRIDGEPORT ROAD
RICHMOND, BRITISH COLUMBIA
CANADA V6X 1S1
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
1997 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
LAWCO OF OREGON, INC.
1211 S.W. FIFTH AVENUE, SUITE 1500
PORTLAND, OREGON 97204
ATTN: SUSAN KIPPER
(503) 727-2000
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------------
COPIES TO:
DAVID S. MATHESON
PERKINS COIE LLP
1211 S.W. FIFTH AVENUE, SUITE 1500
PORTLAND, OREGON 97204-3715
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE(2) PRICE(2)
- ---------------------------- -------------------- ------------------------- --------------------------- ------------------
<S> <C> <C> <C> <C>
Common Shares, without 1,500,000 $21.0625 $31,593,750 $9,320.16
par value
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</TABLE>
(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant
to the 1997 Stock Option Plan as the result of any future stock split,
stock dividend or similar adjustment of the outstanding Common Shares
of the Registrant.
(2) Estimated pursuant to Rule 457 of the Securities Act of 1933, as
amended, solely for the purpose of calculating the amount of the
registration fee. The price per share is estimated to be $21.0625,
based on the average of the high sales price ($21.625) and low sales
price ($20.50) for the Registrant's Common Shares as reported on the
New York Stock Exchange on October 5, 1998.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Rule 424(b) Prospectus dated March 9,
1998 filed with the Securities and Exchange Commission (the "Commission") on
March 10, 1998;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1997; and
(c) The description of the Registrant's Common Shares
contained in the Registration Statement on Form 8-A filed with the Commission on
September 26, 1997, under Section 12(b) of the Exchange Act, including any
amendments or reports filed for the purpose of updating such description.
Any document filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of
a post-effective amendment that indicates that the securities offered hereby
have been sold or that deregisters the securities covered hereby then remaining
unsold shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective date
on which such document is filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Canadian corporation.
Section 124 of the Canada Business Corporations Act, as amended,
provides as follows:
"(1) Indemnification. Except in respect of an action by or on behalf of
the corporation or body corporate to procure a judgment in its favor, a
corporation may indemnify a director or officer of the corporation, a former
director or officer of the corporation or a person who acts or acted at the
corporation's request as a director or officer of a body corporate of which the
corporation is or was a shareholder or creditor, and his heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by him in
respect of any civil, criminal or administrative action or proceeding to which
he is made a party by reason of being or having been a director or officer of
such corporation or body corporate, if
(a) he acted honestly and in good faith with a view to the
best interests of the corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful.
(2) Indemnification in Derivative Action. A corporation may with the
approval of a court indemnify a person referred to in sub-section (1) in respect
of an action by or on behalf of the corporation or body corporate to procure a
judgment in its favor, to which he is made a party by reason of being or having
been a director or an officer of the corporation or body corporate, against all
costs, charges and expenses reasonably incurred by him in connection with such
action if he fulfills the conditions set out in paragraphs (1)(a) and (b).
(3) Indemnity as of Right. Notwithstanding anything in this section, a
person referred to in subsection (1) is entitled to indemnity from the
corporation in respect of all costs, charges and expenses reasonably incurred by
him in connection with the defense of any civil, criminal or administrative
action or proceeding to which he is made a party by reason of being or having
been a director or officer of the corporation or body corporate, if the person
seeking indemnity
(a) was substantially successful on the merits in his defense
of the action or proceeding; and
(b) fulfills the conditions set out in paragraphs (1)(a) and
(b).
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(4) Directors' and Officers' Insurance. A corporation may purchase and
maintain insurance for the benefit of any person referred to in subsection (1)
against any liability incurred by him
(a) in his capacity as a director or officer of the
corporation, except where the liability relates to his failure to act honestly
and in good faith with a view to the best interests of the corporation; or
(b) in his capacity as a director or officer of another body
corporate where he acts or acted in that capacity at the corporation's request,
except where the liability relates to his failure to act honestly and in good
faith with a view to the best interests of the body corporate.
(5) Application to Court. A corporation or a person referred to in
subsection (1) may apply to a court for an order approving an indemnity under
this section and the court may so order and make any further order it thinks
fit.
(6) Notice to Director. An applicant under subsection (5) shall give
the Director notice of the application and the Director is entitled to appear
and be heard in person or by counsel.
(7) Other Notice. On an application under subsection (5), the court may
order notice to be given to any interested person and such person is entitled to
appear and be heard in person or by counsel."
Sections 5 and 6 of By-Law No. 1 of the Registrant provide as follows:
"5. Indemnification of Directors and Officers. The [Registrant] shall
indemnify a director or officer of the [Registrant], a former director or
officer of the [Registrant] or a person who acts or acted at the [Registrant's]
request as a director or officer of a body corporate of which the [Registrant]
is or was a shareholder or creditor, and his heirs and legal representatives to
the extent permitted by the Canada Business Corporations Act.
6. Indemnity of Others. Except as otherwise required by the Canada
Business Corporations Act and subject to paragraph 5, the [Registrant] may from
time to time indemnify and save harmless 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 [Registrant]) by reason of the
fact that he is or was an employee or agent of the [Registrant], or is or was
serving at the request of the [Registrant] as a director, officer, employee,
agent of or participant in another body corporate, partnership, joint venture,
trust or other enterprise, against expenses (including legal fees), judgments,
fines and any amount actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted honestly and in good faith with a
view to the best interests of the [Registrant] and, with respect to any criminal
or administrative action or proceeding that is enforced by a monetary penalty,
had reasonable grounds for believing that his conduct was lawful. The
termination of any action, suit or proceeding by judgment, order, settlement or
conviction shall not, of itself, create a presumption that the person did not
act honestly and in good faith with a view to the best interests of the
[Registrant] and, with respect to any criminal or administrative action or
proceeding that is enforced by a monetary penalty, had no reasonable grounds for
believing that his conduct was unlawful."
The Registrant carries liability insurance which provides for coverage
for officers and directors of the Registrant and its subsidiaries, subject to a
deductible for executive indemnification.
Insofar as indemnification for liabilities arising under the United
States Securities Act of 1933, as amended (the "Securities Act"), may be
permitted to directors, officers or persons controlling the Registrant pursuant
to the foregoing provisions, the Registrant has been informed that in the
opinion of the United States Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
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ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- --------------- ----------------------------------------------------------------------------
<S> <C>
4.1 Form of Common Share Certificate (1)
4.2 Articles of Amalgamation (2)
4.3 By-laws (3)
5.1 Opinion of McCarthy Tetrault regarding legality of the Common Shares being
registered
23.1 Consent of KPMG
23.2 Consent of McCarthy Tetrault (included in its Opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see Signature Page)
99.1 1997 Stock Option Plan, as amended (4)
</TABLE>
(1) Incorporated herein by reference to Exhibit 4 to the Registration Statement
on Form F-1 filed with the Securities Exchange Commission on September 26, 1997,
as amended.
(2) Incorporated herein by reference to Exhibit 3.1 to the Registration
Statement on Form F-1 filed with the Securities Exchange Commission on September
26, 1997, as amended.
(3) Incorporated herein by reference to Exhibit 3.2 to the Registration
Statement on Form F-1 filed with the Securities Exchange Commission on September
26, 1997, as amended.
(4) Incorporated herein by reference to Exhibit 10.1 to the Registration
Statement on Form F-1 filed with the Securities Exchange Commission on September
26, 1997, as amended.
ITEM 9. UNDERTAKINGS
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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
Exchange Act that are incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, 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 that 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this 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
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 Commission, such indemnification is
against public policy as expressed in the Securities 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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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 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 Richmond, Province of British Columbia, on
October 9, 1998.
RITCHIE BROS. AUCTIONEERS INCORPORATED
By /s/ C. RUSSELL CMOLIK
-------------------------------------
C. Russell Cmolik
President and Chief Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
David E. Ritchie, C. Russell Cmolik and Peter J. Blake, and each of them, as
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, to sign in the name and on behalf of such person, individually
and in each capacity stated below, any or all amendments (including
pre-effective and post-effective amendments) to this Registration Statement, and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on October 9, 1998.
<TABLE>
<S> <C>
/s/ DAVID E. RITCHIE Chairman of the Board and Chief Executive Officer (principal
- -------------------------------------- executive officer)
David E. Ritchie
/s/ C. RUSSELL CMOLIK Director, President and Chief Operating Officer
- --------------------------------------
C. Russell Cmolik
/s/ PETER J. BLAKE Director, Vice President Finance and Chief Financial Officer
- -------------------------------------- (principal financial and accounting officer)
Peter J. Blake
/s/ CHARLES E. KROFT Director
- --------------------------------------
Charles E. Kroft
/s/ GEORGE EDWARD MOUL Director
- --------------------------------------
George Edward Moul
/s/ KENNETH D. ASBURY Authorized Representative in the United States
- --------------------------------------
Kenneth D. Asbury
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ----------------- ---------------------------------------------------------------------------
<S> <C>
4.1 Form of Common Share Certificate (1)
4.2 Articles of Amalgamation (2)
4.3 By-laws (3)
5.1 Opinion of McCarthy Tetrault regarding legality of the Common Shares being
registered
23.1 Consent of KPMG
23.2 Consent of McCarthy Tetrault (included in its Opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see Signature Page)
99.1 1997 Stock Option Plan, as amended (4)
</TABLE>
- ----------
(1) Incorporated herein by reference to Exhibit 4 to the Registration Statement
on Form F-1 filed with the Securities Exchange Commission on September 26, 1997,
as amended.
(2) Incorporated herein by reference to Exhibit 3.1 to the Registration
Statement on Form F-1 filed with the Securities Exchange Commission on September
26, 1997, as amended.
(3) Incorporated herein by reference to Exhibit 3.2 to the Registration
Statement on Form F-1 filed with the Securities Exchange Commission on September
26, 1997, as amended.
(4) Incorporated herein by reference to Exhibit 10.1 to the Registration
Statement on Form F-1 filed with the Securities Exchange Commission on September
26, 1997, as amended.
<PAGE> 1
EXHIBIT 5.1
McCarthy Tetrault
BARRISTERS & SOLICITORS o PATENT & TRADE MARK AGENTS
P.O. BOX 10424, PACIFIC CENTRE
SUITE 1300, 777 DUNSMUIR STREET
VANCOUVER, B.C., CANADA V7Y 1K2
FACSIMILE (604) 643-7900
TELEPHONE (604) 643-7100
October 8, 1998
Ritchie Bros. Auctioneers Incorporated
9200 Bridgeport Road
Richmond, B.C. V6X 1S1
CANADA
Re: Registration Statement on Form S-8 of Common Shares, Without Par
Value, of Ritchie Bros. Auctioneers Incorporated (the "Company")
Ladies and Gentlemen:
We have acted as Canadian counsel to the Company in connection with the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") under the United States Securities Act of 1933, as amended (the
"Act"), which the Company is filing with the Securities and Exchange Commission
with respect to 1,500,000 Common Shares, without par value (the "Shares"), which
may be issued pursuant to the Ritchie Bros. Auctioneers Incorporated 1997 Stock
Option Plan, as amended (the "Plan"). We have examined the Registration
Statement and such resolutions, documents and records of the Company and other
documents as we have deemed necessary for the purpose of this opinion. In giving
this opinion, we are assuming the authenticity of all instruments presented to
us as originals, the conformity with originals of all instruments presented to
us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that may be issued pursuant to the Plan have been duly authorized and
that, upon the due exercise of stock options in accordance with the terms of the
Plan, the due execution by the Company and the registration by the Company's
registrar of such Shares and the receipt by the Company of the exercise price
under such options for the Shares in accordance with the terms of the Plan, such
Shares will be validly issued, fully paid and nonassessable.
In rendering this opinion, we express no opinion as to the laws of any
jurisdiction other than the laws of Canada and the laws of the Province of
British Columbia.
The opinions expressed herein are provided exclusively for the benefit
of the Company and may not be relied upon by any other persons without our
express written consent.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ McCarthy Tetrault
McCARTHY TETRAULT
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
As independent chartered accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated January
30, 1998, included in Ritchie Bros. Auctioneers Incorporated's Rule 424(b)
Prospectus dated March 9, 1998, and to all references to our firm included in
this Registration Statement.
/s/ KPMG LLP, Chartered Accountants
Richmond, Canada
October 8, 1998
