As filed with the Securities and Exchange Commission on July 3, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
____________________
MINING SERVICES INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Utah 87-0351702
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
____________________
8805 South Sandy Parkway
Sandy, Utah 84070
(Address of Principal Executive Offices,
including Zip Code)
MINING SERVICES INTERNATIONAL CORPORATION
1987 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Duane W. Moss Copy to:
Chief Financial Officer and Legal Counsel D. MATTHEW DORNY
Mining Services International Corporation Kimball, Parr, Waddoups, Brown & Gee
8805 South Sandy Parkway 185 South State Street, Suite 1300
Sandy, Utah 84070 Salt Lake City, Utah 84111
(801) 233-6018 (801) 532-7840
(Name, address and telephone
number, including area code,
of agent for service)
____________________
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Securities Amount to be Offering Price Offering Registration
to be Registered Registered per share (1) Price(1) Fee(1)
- -------------------------------------------------------------------------------
Common Stock 666,031 shares $6.67 $4,441,003.07 $1,346.00
- -------------------------------------------------------------------------------
(1) Estimated pursuant to Rule 457(h)(2) for purposes of calculating the
registration fee. With respect to 401,578 shares of the Common Stock being
registered, the offering price per share, aggregate offering price and
registration fee have been calculated upon the basis of the exercise price at
which such options may be exercised, pursuant to Rule 457(h)(1). With respect
to the remaining 264,453 shares being registered, for which the exercise price
is not known, the offering price per share, aggregate offering price and
registration fee are computed on the basis of the average of the high and low
sales prices as reported on the NASDAQ Stock Market (Small Cap) on June 26,
1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Mining Services International
Corporation (the "Registrant") with the Securities and Exchange Commission are
hereby incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1996.
(2) The Registrant's Quarterly Report on Form 10-QSB for the three
months ended March 31, 1997.
(3) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendment or report filed under the Exchange Act for the purpose of
updating such description.
In addition, 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 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 of such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes hereof to the extent that
a statement contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
The financial statements of the Registrant included in the Registrant's
Annual Report on Form 10-KSB for the year ended December 31, 1996, and
incorporated by reference in this Registration Statement, have been audited by
Tanner + Co., independent public accountants, as indicated in their report
with respect thereto, and are included herein in reliance upon the authority
of said firm as experts in giving said report.
2
<PAGE>
Future financial statements of the Registrant and the reports thereon by
Tanner + Co. also will be incorporated by reference in the Registration
Statement in reliance upon the authority of that firm as experts in giving
those reports; provided, however, only to the extent that said firm has
audited those financial statements and consented to the use of their reports
thereon.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal (a "Proceeding"), because he is or was a director
of the corporation or is or was serving at its request as a director, officer,
partner, trustee, employee, fiduciary or agent of another corporation or other
person or of an employee benefit plan (an "Indemnified Director"), against any
obligation incurred with respect to a Proceeding, including any judgment,
settlement, penalty, fine or reasonable expenses (including attorneys' fees),
incurred in the Proceeding if his conduct was in good faith, he reasonably
believed that his conduct was in, or not opposed to, the best interests of the
corporation, and, in the case of any criminal Proceeding, he had no reasonable
cause to believe his conduct was unlawful; except that (i) indemnification
under Section 902 in connection with a Proceeding by or in the right of the
corporation is limited to payment of reasonable expenses (including attorneys'
fees) incurred in connection with the Proceeding and (ii) the corporation may
not indemnify an Indemnified Director in connection with a Proceeding by or in
the right of the corporation in which the Indemnified Director was adjudged
liable to the corporation, or in connection with any other Proceeding charging
that the Indemnified Director derived an improper personal benefit, whether or
not involving action in his official capacity, in which Proceeding he was
adjudged liable on the basis that he derived an improper personal benefit.
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a
determination has been made (by the board of directors, a committee of the
board of directors or by the stockholders) that indemnification of the
director is permissible in the circumstances because the director has met the
applicable standard of conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify
a director who was successful, on the merits or otherwise, in the defense of
any Proceeding, or in the defense of any claim, issue or matter in the
proceeding, to which he was a Party because he is or was a director of the
corporation, against reasonable expenses (including attorneys' fees) incurred
by him in connection with the Proceeding or claim.
3
<PAGE>
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after
giving any notice the court considers necessary, (i) the court may order
mandatory indemnification under Section 903, in which case the court shall
also order the corporation to pay the director's reasonable expenses to obtain
court-ordered indemnification, or (ii) upon the court's determination that the
director is fairly and reasonably entitled to indemnification in view of all
the relevant circumstances and regardless of whether the director met the
applicable standard of conduct set forth in Section 902, the court may order
indemnification as the court determines to be proper, except that
indemnification with respect to certain Proceedings resulting in a director
being found liable for certain actions against the corporation may be limited
to reasonable expenses (including attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director
furnishes the corporation a written affirmation of his good faith belief that
he has met the applicable standard of conduct described in Section 902,
(ii) the director furnishes to the corporation a written undertaking, executed
personally or in his behalf, to repay the advance if it is ultimately
determined that he did not meet the required standard of conduct, and (iii) a
determination is made that the facts then known to those making the
determination would not preclude indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of
the corporation is entitled to mandatory indemnification under Section 903 and
is entitled to apply for court ordered indemnification under Section 905, in
each case to the same extent as a director, (ii) the corporation may indemnify
and advance expenses to an officer, employee, fiduciary or agent of the
corporation to the same extent as a director, and (iii) a corporation may also
indemnify and advance expenses to an officer, employee, fiduciary or agent who
is not a director to a greater extent than the right of indemnification
granted to directors, if not inconsistent with public policy, and if provided
for by its articles of incorporation, bylaws, general or specific action of
its board of directors or contract.
The Registrant's Bylaws provide that the Registrant shall, to the
fullest extent permitted, and in the manner required by the law of the State
of Utah, indemnify an individual made, or threatened to be made a party to a
proceeding because he is or was a director, officer, employee or agent of the
Registrant or of another enterprise at the request of the Registrant.
The Registrant's Articles of Incorporation, as amended, provide that to
the fullest extent permitted by the Revised Act or any other applicable law as
now in effect or as it may hereafter be amended, a director of the Registrant
shall not be personally liable to the Registrant or its shareholders for
monetary damages for any action taken or any failure to take any action, as a
director. The extent to which the Revised Act permits director liability to
be eliminated is governed by Section 16-10a-841 of the Revised Act, which
provides that the liability of a director may not be eliminated or limited for
4
<PAGE>
(i) the amount of financial benefit received by a director to which he is not
entitled; (ii) an intentional infliction of harm on the corporation or its
shareholders; (iii) a violation of Section 16-10a-842 of the Revised Act which
prohibits unlawful distributions by a corporation to its shareholders; or (iv)
an intentional violation of criminal law.
Indemnification may be granted pursuant to any other agreement, bylaw,
or vote of shareholders or directors. In addition to the foregoing, the
Registrant maintains insurance from commercial carriers against certain
liabilities which may be incurred by its directors and officers. The
foregoing description is necessarily general and does not describe all details
regarding the indemnification of officers, directors or controlling persons of
the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page 7.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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 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;
(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;
5
<PAGE>
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.
(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 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 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.
6
<PAGE>
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 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 Salt Lake City, State of Utah, on
June 30, 1997.
MINING SERVICES INTERNATIONAL CORPORATION
By /s/ John T. Day
------------------------------------
John T. Day, President
POWER OF ATTORNEY
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. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints John T.
Day and Duane W. Moss, and each of them, as his true and lawful attorney-in-
fact and agent, with full power of substitution, to sign on his behalf
individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement
or the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Signature Title Date
- -------------------------------------------------------------------------------
/s/ Edward Neff Bagley Chairman of the Board of Directors June 30, 1997
- ---------------------------
Edward Neff Bagley
/s/ Lex L. Udy Vice Chairman and Secretary and June 30, 1997
- --------------------------- Director
Lex L. Udy
/s/ John T. Day President and Chief Executive June 30, 1997
- --------------------------- Officer and Director (Principal
John T. Day Executive Officer)
/s/ Edward Dallin Bagley Director June 30, 1997
- ---------------------------
Edward Dallin Bagley
Director
- ---------------------------
Nathan L. Wade
/s/ Duane W. Moss Chief Financial Officer and June 30, 1997
- --------------------------- Legal Counsel
Duane W. Moss
7
<PAGE>
MINING SERVICES INTERNATIONAL CORPORATION
EXHIBIT INDEX
Regulation S-K Sequential
Exhibit No. Description Page No.
- --------------- ------------------------------------------- --------------
4.1* Articles of Incorporation and Bylaws.
(Incorporated herein by reference from
Form 10-K Report filed by the Company for
the fiscal year ended December 31, 1985).
Amendment to Articles of Incorporation to
reflect the one-for-five reverse stock
split which became effective June 15,
1987. (Incorporated by reference from
the Form 10-K Report filed by the Company
for the fiscal year ended December 31,
1987).
4.2* Bylaws of the Corporation as amended
March 1, 1988. (Incorporated by
reference from the Form 10-K Report filed
by the Company for the fiscal year ended
December 31, 1987).
5 Opinion of Kimball, Parr, Waddoups, Brown
& Gee, a professional corporation, as to
the legality of the securities offered.
23.1 Consent of Tanner + Co.
23.2 Consent of Kimball, Parr, Waddoups, Brown
& Gee (included in Exhibit No. 5).
24 Powers of Attorney (included on page 7 hereof).
_________________________________
* Incorporated by reference
8
<PAGE>
Exhibit 5
[Letterhead of Kimball, Parr, Waddoups, Brown & Gee]
July 3, 1997
The Board of Directors of
Mining Services International Corporation
8805 South Sandy Parkway
Sandy, Utah 84070
Re: Mining Services International Corporation
Registration Statement on Form S-8
Gentlemen:
As counsel to Mining Services International Corporation, a Utah
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 (the "Registration Statement") to be filed under the
Securities Act of 1933, as amended, for registration of 666,031 shares (the
"Shares") of Common Stock, $0.005 par value, of the Company to be offered,
sold and issued by the Company pursuant to the Mining Services International
Corporation 1987 Nonqualified Stock Option Plan (the "Option Plan"), we have
examined the originals or certified, conformed or reproduction copies of all
such records, agreements, instruments and documents as we have deemed
necessary as the basis for the opinion expressed herein. In all such
examinations, we have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to the opinion hereinafter expressed, we have
relied upon certificates of public officials and statements or certificates of
officers or representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the terms and conditions of the Option
Plan and pursuant to the Registration Statement, will be legally issued, fully
paid and nonassessable.
<PAGE>
Mining Services International
Corporation
July 3, 1997
Page 2
- --------------------
We hereby consent to the filing of the opinion as an exhibit to the
Registration Statement.
Very truly yours,
KIMBALL, PARR, WADDOUPS, BROWN & GEE
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 25, 1997, which appears on
page F-2 of the 1996 Form 10KSB of Mining Services International Corporation,
and to the references to our Firm in the Registration Statement.
TANNER + CO.
Salt Lake City, Utah
July 2, 1997
