As filed with the Securities and Exchange Commission on March 16, 1999
Registration No. 33- ____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement Under the Securities Act of 1933
ZEMEX CORPORATION
(Exact name of issuer as specified in its charter)
CANADA
(State or other jurisdiction of incorporation or organization)
CANADA TRUST TOWER, BCE PLACE
161 BAY STREET, SUITE 3750
TORONTO, ONTARIO, CANADA M5J 2S1
(Address of principal executive offices, including postal code)
ZEMEX CORPORATION 1995 STOCK OPTION PLAN
(Full title of the plan)
--------------------------------
Patricia K. Moran
Corporate Secretary and Assistant Treasurer
Zemex Corporation
Canada Trust Tower, BCE Place
161 Bay Street, Suite 3750
Toronto, Ontario, Canada M5J 2S1
(416) 365-8080
(Name, address, and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------ ------------------------------------------------------
Number of Proposed maximum Proposed maximum Amount of
Title of Securities shares to be offering price aggregate registration
to be registered registered per share* offering price* fee
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common shares, no par value 529,000 $5.375 $2,830,150 $786.78
- -------------------------------------------------------------------------------------------------------
</TABLE>
* Estimated solely for the purpose of determining the amount of the registration
fee pursuant to Rule 457(c), and is based on the average of the high and low
prices of the Corporation's common shares on March 15, 1999 as quoted on the New
York Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed previously with the Securities
and Exchange Commission (the "Commission") (Commission File No. 1-228) by the
Corporation pursuant to the Securities Exchange Act of 1934, as amended, are
incorporated herein by reference in this Registration Statement:
(a) the Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 filed with the Commission on March 31, 1998, and as
amended by the Corporation's Annual Report on Form 10-K/A-1 filed with the
Commission on December 9, 1998;
(b) the Corporation's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998; and
(c) the Corporation's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998; and
(d) the Corporation's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998;
(e) the Corporation's Current Report on Form 8-K dated January 21, 1999 and
filed with the Commission on January 22, 1999;
(f) the Corporation's Current Report on Form 8-K dated January 15, 1999 and
filed with the Commission on January 20, 1999;
(g) the description of the Corporation's common shares set forth in the
Registration Statement on Form S-4, as amended, which was declared effective
on December 10, 1998 (File No. 333-65307) for Zemex Canada Corporation (the
former name of the Corporation); and
(h) all documents filed with the Commission subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13 (c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and
to be a part hereof the date of filing of such documents with the
Commission.
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Any statement contained herein or in a document incorporated, or deemed to be
incorporated, by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Corporation's bylaws provide that, subject to the limitations contained in
the Canada Business Corporations Act, the Corporation shall indemnify any
director or officer, any former director or officer, or any 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 the Corporation or such 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.
The Corporation shall also indemnify such person in such other circumstances as
the Canada Business Corporations Act permits or requires. The indemnification
provided by the bylaws shall not limit the right of any person entitled to
indemnity to claim indemnity apart from the provisions of the bylaws.
The bylaws further provide that, subject to the Canada Business Corporations
Act, the Corporation may purchase and maintain insurance for the benefit of any
indemnified
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person against such liabilities and in such amounts as the board may from time
to time determine and as are permitted by the Canada Business Corporations Act.
Under the Corporation's bylaws, provided that every director and officer of the
Corporation in exercising his powers and discharging his duties acts honestly
and in good faith with a view to the best interests of the Corporation and
exercises the care, diligence and skill that a reasonably prudent person would
exercise in comparable circumstances, no director or officer shall be liable for
the acts, receipts, neglects or defaults of any other director, officer or
employee, or for joining in any receipt or other act for conformity, or for any
loss, damage or expense happening to the Corporation through the insufficiency
or deficiency of title to any property acquired for or on behalf of the
Corporation or for the insufficiency or deficiency of any security in or upon
which any of the monies of the Corporation shall be invested, or for any loss or
damage arising from the bankruptcy, insolvency or tortious acts of any person
with whom any of the monies, securities or effects of the Corporation shall be
deposited, or for any loss occasioned by any error of judgment or oversight on
his part, or for any other loss, damage or misfortune whatever which shall
happen in the execution of the duties of his office or in relation thereto;
provided that nothing herein shall relieve any director or officer from the duty
to act in accordance with the Canada Business Corporations Act and the
regulations thereunder or from liability for any breach thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling the
Corporation pursuant to the foregoing provisions, the Corporation has been
informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act of 1933 and is therefore
unenforceable.
The Corporation maintains directors and officers liability insurance and such
insurance premiums are paid by the Corporation.
The foregoing description of certain provisions of the Corporation's bylaws is
qualified in its entirety by the actual bylaws of the Corporation as filed as an
exhibit to the Registration Statement on Form S-4 (No. 333-65307).
Subject to certain exceptions, the directors, all corporate officers and any
employees working in conjunction therewith and the heirs, assigns and estates of
such directors, officers and employees of the Corporation are insured against
claims made against them, including claims arising under the Securities Act of
1933, and caused by negligent acts, errors, omissions or breaches of duty while
acting in their capacities as such directors or officers, and
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ITEM 7. EXCEPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits listed below are listed according to the number assigned in the
table in Item 601 of Regulation S-K.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
3(a) Amended and Restated Certificate of Incorporation (Incorporated
by reference from Exhibit A of the Corporation's Definitive Proxy
Statement, filed on March 29, 1995)
3(b) Bylaws (incorporated by reference to Exhibit 3 to the
Corporation's Registration Statement on Form S-4 filed on
December 10, 1998)
5 Opinion of Stikeman, Elliott as to the legality of the
securities to which this registration statement relates
23(a) Consent of Stikeman, Elliott (contained in Exhibit 5)
23(b) Consent of Deloitte & Touche LLP, Toronto, Ontario
24 Powers of Attorney (see "Signatures")
99 Zemex Corporation 1995 Stock Option Plan (incorporated by
reference to Exhibit A to the Corporation's Definitive Proxy
Statement, filed on March 29, 1995)
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 of 1933, as amended;
(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
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(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 the undertakings set forth in 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 by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this 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.
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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 Toronto, in the Province of Ontario, on March 17,
1999.
ZEMEX CORPORATION
(Registrant)
By: /s/ Richard L. Lister
--------------------------------
Richard L. Lister
President and Chief Executive
Officer
Each of the undersigned hereby appoints Richard L. Lister and Allen J. Palmiere
and each of them severally, his true and lawful attorneys to execute on behalf
of the undersigned any and all 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, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated above.
/s/ Peter O. Lawsonl-Johnston Chairman of the Board
- ---------------------------------------- and Director
Peter O. Lawson-Johnston
/s/ Richard L. Lister President, Chief Executive Officer
- ---------------------------------------- and Director (Principal Executive
Richard L. Lister Officer)
/s/ Paul A. Carroll Director
- ----------------------------------------
Paul A. Carroll
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/s/ Morton A. Cohen Director
- ----------------------------------------
Morton A. Cohen
/s/ John M. Donovan Director
- ----------------------------------------
John M. Donovan
/s/ R. Peter C. Gillin Director
- ----------------------------------------
R. Peter C. Gillin
/s/ Garth A.C. MacRae Director
- ----------------------------------------
Garth A. C. MacRae
/s/ William J. vanden Heuvel Director
- ----------------------------------------
William J. vanden Heuvel
Vice President, Chief Financial
/s/ Allen J. Palmiere Officer and Assistant Secretary
- ---------------------------------------- (Principal Financial and
Allen J. Palmiere Accounting Officer)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
3(a) Amended and Restated Certificate of Incorporation
(Incorporated by reference from Exhibit A of the
Corporation's Definitive Proxy Statement, filed on
March 29, 1995)
3(b) By-laws (incorporated by reference to Exhibit 3 to
the Corporation's Registration Statement on Form S-4
filed on December 10, 1998)
5 Opinion of Stikeman, Elliott as to the legality of
the securities to which this registration statement
relates
24(a) Consent of Stikeman, Elliott (contained in
Exhibit 5)
24(b) Consent of Deloitte & Touche LLP, Toronto, Ontario
25 Powers of Attorney (see "Signatures")
99 Zemex Corporation 1995 Stock Option Plan (incorporated
byreference to Exhibit A to the Corporation's Definitive
Proxy Statement, filed on March 29, 1995)
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[LETTERHEAD OF DELOITTE & TOUCHE]
Zemex Corporation
Canada Trust Tower, BCE Place
161 Bay Street, Suite 3750,
Toronto, Ontario
M5J 2S1
Dear Sirs:
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Zemex Corporation of our Auditors' Reports dated
February 6, 1998 except for Note 18(ii) as to which the date is February 24,
1998, and except for Note 20 as to which the date is November 6, 1998, included
in the Zemex Corporation Form 10-K and Form 10-K/A-1 for the fiscal year ended
December 31, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
March 16, 1999
[LETTERHEAD OF STIKEMAN, ELLIOTT]
March 15, 1999
Zemex Corporation
Canada Trust Tower
BCE Place
161 Bay Street
Suite 3750
Toronto, Ontario
M5J 2S1
Ladies and Gentlemen:
RE: SALE OF COMMON SHARES PURSUANT TO
REGISTRATION STATEMENT ON FORM S-8 COVERING
1995 EMPLOYEE STOCK OPTION PLAN OF ZEMEX
U.S. CORPORATION
We have acted as counsel to Zemex Corporation (the "Company") in connection
with the registration by the Company of 529,000 common shares (the "Shares"),
described in the Registration Statement on Form S-8 of the Company being filed
with the Securities and Exchange Commission concurrently herewith. The Shares
have been or may be issued by the Company pursuant to the 1995 Employee Stock
Option Plan (the "Plan") of Zemex U.S. Corporation, a wholly-owned subsidiary of
the Company which provides for the possible sale of shares of capital stock of
the Company upon exercise of stock options in accordance with the Plan. In such
connection we have examined certain corporate records and proceedings of the
Company, including actions taken by the Company's Board of Directors in respect
of the authorization and issuance of the Shares to meet the requirements of the
Plan, and such other matters as we deemed appropriate.
<PAGE>
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued as contemplated by the Registration Statement,
will be legally issued, fully paid and non-assessable shares in the capital
stock of the Company.
We hereby consent to be named in the Registration Statement and in the
Prospectus constituting a part thereof, as amended from time to time, as the
attorneys who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this opinion as an exhibit to the aforesaid
Registration Statement.
Yours truly,
/s/ Jay C. Kellerman
Jay C. Kellerman
/ls
