As filed with the Securities and Exchange Commission on March 31, 1999.
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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ZEMEX CORPORATION
(Exact name of registrant as specified in its charter)
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CANADA NONE
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
CANADA TRUST TOWER, BCE PLACE
161 BAY STREET, SUITE 3750
TORONTO, ONTARIO, CANADA M5J 2S1
(416) 365-8080
(Address of principal executive offices)
1999 STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
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PATRICIA K. MORAN
CORPORATE SECRETARY
AND ASSISTANT TREASURER
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)
Copies To:
RONALD R. LEVINE, II, ESQ. JAY C. KELLERMAN, ESQ.
DAVIS, GRAHAM & STUBBS LLP STIKEMAN, ELLIOTT
370 SEVENTEENTH STREET, SUITE 4700 COMMERCE COURT WEST, SUITE 5300
DENVER, COLORADO 80202 TORONTO, ONTARIO, CANADA M5L 1B9
(303) 892-9400 (416) 869-5500
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed maximum Proposed
Amount to be offering price maximum aggregate Amount of
Title of securities to be registered registered per unit/1/ offering price/1/ registration fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, without par value 490,909 shares $5.50 $2,700,000 $750.60
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</TABLE>
/1/ Estimated solely for the purpose of determining the amount of the
registration fee pursuant to Rule 457(h), and is based upon the average of
the high and low prices of the Corporation's Common Shares on March 26,
1999 as quoted on the New York Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Corporation hereby states that the following documents filed with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Registration Statement by reference as of their date of
filing with the Commission:
(a) the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998, filed with the Commission on March
29, 1999;
(b) 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 (No. 333-65307)
for Zemex Canada Corporation (the former name of the
Corporation).
(c) all documents filed by the Corporation with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 subsequent to the date of this
Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement
indicating that all securities offered under the Registration
Statement have been sold, or deregistering all securities then
remaining unsold.
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.
4. DESCRIPTION OF SECURITIES.
Not applicable.
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 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.
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<PAGE>
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 foregoing description of certain provisions of the Corporation's
bylaws is qualified in its entirety by the actual bylaws of the Corporation
filed as an exhibit to the Registration Statement on Form S-4 (No. 333-65307).
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
8. EXHIBITS.
(a) Exhibits.
5.1 Opinion and consent of Stikeman, Elliott./1/
23.1 Consent of Stikeman, Elliott. See Exhibit 5.1./1/
23.2 Consent of Deloitte & Touche LLP, Chartered
Accountants./1/
99.1 Zemex Corporation 1999 Stock Option Plan./2/
99.2 Zemex Corporation 1999 Employee Stock Purchase
Plan./2/
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/1/ Filed herewith.
/2/ Incorporated by reference to Zemex Corporation's Definitive Proxy
Statement filed on March 25, 1999.
II-3
<PAGE>
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 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 (the "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; and (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 Act, 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 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 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
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 City of Toronto, the Province of Ontario, on March 31,
1999.
Zemex Corporation
By: /S/ RICHARD L. LISTER
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Richard L. Lister
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally Richard L. Lister,
Allen J. Palmiere or Patricia K. Moran, or any of them, with full power to act
alone, his true and lawful attorneys-in-fact, with full power of substitution,
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-8 relating to the
registration under the U.S. Securities Act of 1933, as amended (the "Act") of
common shares of the Corporation (the "Registration Statement"), and any and all
amendments (including post-effective amendments) to the Registration Statement
and any subsequent registration statement filed pursuant to Rule 462(b) under
the Act, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact full power and authority to do and perform each and every
act and thing requisite and necessary to be done as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact or either of them may lawfully do or cause to be
done by virtue hereof.
II-5
<PAGE>
Pursuant to the requirements of the Act, this Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/PETER O. LAWSON-JOHNSTON Chairman of the Board March 31, 1998
- ------------------------------------
Peter O. Lawson-Johnston
/S/RICHARD L. LISTER President, Chief Executive Officer
- ------------------------------------ and Director (Principal Executive March 31, 1998
Richard L. Lister Officer)
/S/PAUL A. CARROLL Director March 31, 1998
- ------------------------------------
Paul A. Carroll
/S/MORTON A. COHEN Director March 31, 1998
- ------------------------------------
Morton A. Cohen
/S/JOHN M. DONOVAN Director March 31, 1998
- ------------------------------------
John M. Donovan
/S/R. PETER GILLIN Director March 31, 1998
- ------------------------------------
R. Peter Gillin
/S/GARTH A.C. MACRAE Director March 31, 1998
- ------------------------------------
Garth A.C. MacRae
/S/WILLIAM J. VANDEN HEUVEL Director March 31, 1998
- ------------------------------------
William J. vanden Heuvel
/S/ALLEN J. PALMIERE
- ------------------------------------ Vice President and Chief Financial
Allen J. Palmiere Officer (Principal Financial and March 31, 1998
Accounting Officer)
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- ------- ----------- ----------
5.1 Opinion and consent of Stikeman, Elliott.
23.1 Consent of Stikeman, Elliott. See Exhibit 5.1.
23.2 Consent of Deloitte & Touche LLP, Chartered Accountants.
II-7
[Letterhead of Stikeman, Elliott]
March 31, 1999
Zemex Corporation
Canada Trust Tower
BCE Place
161 Bay Street, Suite 3750
Toronto, Ontario
CANADA M5J 2S1
Re: Sale of Common Shares Pursuant to Registration Statement on Form S-8
Covering 1999 Stock Option Plan and 1999 Employee Stock Purchase Plan
of Zemex Corporation
Ladies and Gentlemen:
We have acted as counsel to Zemex Corporation (the "Company") in
connection with the registration by the Company of 490,909 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 may be issued by the Company pursuant to the 1999 Stock Option Plan
and the 1999 Employee Stock Purchase Plan (the "Plans") of Zemex Corporation. 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.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when issued as contemplated by the Plans, 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/ Stikeman, Elliott
STIKEMAN, ELLIOTT
II-8
[Letterhead of Deloitte & Touche]
Zemex Corporation
Canada Trust Tower, BCE Place
161 Bay Street, Suite 3750
Toronto, Ontario
CANADA 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 5, 1999 included in the Zemex Corporation Form 10-K for the fiscal year
ended December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
March 31, 1999
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