<PAGE> 1
As filed with the Securities and Exchange Commission on August 2, 1996
Registration No. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------------------
SUNSHINE MINING AND REFINING COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 75-2231378
(State or other jurisdiction (IRS Employer Identification Number)
of incorporation or organization)
83702
877 W. MAIN STREET, SUITE 600 (Zip Code)
BOISE, IDAHO
(Address of principal executive offices)
SUNSHINE MINING AND REFINING COMPANY 1995 EMPLOYEE NONQUALIFIED
STOCK OPTION PLAN
SUNSHINE MINING AND REFINING COMPANY 1993 INCENTIVE STOCK OPTION PLAN
SUNSHING MINING AND REFINING COMPANY 1987 EMPLOYEE NON-QUALIFIED
STOCK OPTION PLAN
(Full title of the plan)
--------------------------------------
JOHN S. SIMKO
President
Sunshine Mining and Refining Company
877 West Main Street, Suite 600
Boise, Idaho 83702
(Name and address of agent for service)
(208) 345-0660
(Telephone number, including area code, of agent for service)
--------------------------------------
Copy to:
James D. Hovren, Esq.
EVANS, KEANE LLP
1101 W. River St., Suite 200
P.O. Box 959
Boise, Idaho 83701-0959
--------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to Be Registered Be Registered Per Share Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 Par Value... 61,500(1) (1) $73,031.25(1) $25.18(1)
shares
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 Par Value... 326,500(1) (1) $387,718.75(1) $133.70(1)
shares
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 Par Value . 10,000,000(1) (1) $11,875,000(1) $4,094.83(1)
shares
- ------------------------------------------------------------------------------------------------------------------------------------
Total Fee $4,253.71(1)
====================================================================================================================================
</TABLE>
(1) Up to 61,500 shares of Common Stock, par value $.01 to be issued upon
exercise of options to be granted under the Company's 1987 Employee
Non-Qualified Stock Option Plan; up to 326,500 shares of Common Stock, par
value $.01 to be issued upon exercise of options to be granted under the
Company's 1993 Incentive Stock Option Plan; and up to 10,000,000
<PAGE> 2
shares of Common Stock, par value $.01 to be issued upon exercise of options to
be granted under the Company's 1995 Employee Nonqualified Stock Option Plan,
are registered hereby. The offering price per share, the aggregate offering
price and the registration fee have been calculated in accordance with
paragraphs (c) and (h)(1) of Rule 457 on the basis of the average high and low
sale prices for Common Stock on the NYSE on July 29, 1996, of $1.1875 per
share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Sunshine Mining and Refining Company ("Sunshine" or the "Company")
hereby incorporates by reference the following documents filed with the
Securities and Exchange Commission (the "Commission"):
a. Sunshine's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (the "1995 Form 10- K");
b. Sunshine's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 (the "March 31, 1996 10- Q");
c. Sunshine's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996 (the "June 30, 1996 10- Q");
d. The description of Common Stock contained in the Sunshine's
Registration Statement, Registration No. 1- 7966, as amended, filed pursuant to
the Securities Exchange Act of 1934.
All documents subsequently filed by Sunshine pursuant to Sections
13(a), 13(c), 14, and 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 hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware empowers a
corporation, subject to certain limitations, to indemnify its directors and
officers against expenses (including attorney fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by them in
connection with any action, suit or proceeding to which they are a party, or
threatened to be made a party, so long as they acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful.
In addition, the Certificate of Incorporation of the Company provides
that directors of the Company shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that such exemption from liability or limitation thereof
is not permitted under the Delaware General Corporation Law.
The bylaws of the Company also provide that the Company shall
indemnify any person who is or was 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 corporation) by reason of the fact that such person is or was
a director, trustee, officer, employer or agent of the Company, or was serving
as such in another corporation, partnership, joint venture, trust or other
enterprise at the request of the Company, against expenses (including attorney
fees), judgments, fines and amounts paid in settlement actually and
<PAGE> 3
reasonably incurred by such person in connection with such suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. In addition, the bylaws provide that the Company shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the Company to procure a judgment in the Company's favor by reason of the fact
that such person is or was the director, trustee, officer, employee or agent of
the Company, or is or was serving at the request of the Company in such
position in another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorney fees) and amounts paid in
settlement actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to amounts paid in
settlement, the settlement of the suit or action was in the best interests of
the corporation. Indemnification shall be made in limited circumstances in the
event that such person is adjudged to be liable for gross negligence or
wilfulness conduct.
The bylaws further provide that the Company shall have the power to
purchase and maintain insurance on behalf of any director, trustee, officer,
employee or agent of the Company against any liability asserted against such
person and incurred by such person in such capacity, whether or not the Company
would have the power to indemnify such person against such liability.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
--------- -------
<S> <C>
4.1 Form of Warrant Agreement, dated as of February 3, 1994, between Sunshine and American Stock Transfer &
Trust Company, as Warrant Agent, filed as Exhibit 4.3 to Sunshine's Registration Statement on Form S-1
(Registration No. 33-73608), as amended and incorporated herein by reference.
4.2 Form of Warrant Certificate, filed as Exhibit 4.4 to Sunshine's Registration Statement on Form S-1
(Registration No. 33-73608), as amended and incorporated herein by reference.
4.4 Specimen Stock Certificate of the Common Stock, $0.01 par value, of Sunshine, filed as Exhibit 4.2 to
Sunshine's Registration Statement on Form S-1 (Registration No. 33-63446) as amended, and incorporated
herein by reference.
4.5 Form of Indenture dated as of July 15, 1988, between Sunshine and MTrust Corp., National Association, with
respect to Sunshine's Convertible Subordinated Debentures due July 15, 2008, filed as Exhibit 4.25 to
Sunshine's Registration Statement on Form S-3 (Registration No. 33-21159) and incorporated herein by
reference.
4.6 First Supplemental Indenture, dated as of August 8, 1988, Second Supplemental Indenture dated as of
November 10, 1988, and Third Supplemental Indenture, dated as of April 10, 1991, by and between the
Company and Ameritrust Texas, N.A., the successor to MTrust Corp., National Association relating to the
issuance of the Debentures, filed as Exhibit 4.3 to Sunshine's Annual Report on Form 10-K for the fiscal
year ended December 31, 1990, and incorporated herein by reference.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<S> <C>
4.7 Form of Fourth Supplemental Indenture, by and between the Company and Texas Commerce Bank National
Association, as successor to Ameritrust Texas National Association formerly known as MTrust Corp.,
National Association, relating to the issuance of the Debentures, filed as Exhibit 4.10 to Sunshine Merger
Company's Registration Statement on Form S-4, Registration No. 33-98876, and incorporated herein by
reference..
4.8 Form of Supplemental Warrant Agreement dated as of February 1, 1996 between Sunshine Merger Company and
American Stock Transfer & Trust Company, as Warrant Agent, relating to the Warrants ($2.12 exercise
price), filed as Exhibit to Sunshine Merger Company's Registration Statement on Form S-4, Registration No.
33-98876, and incorporated herein by reference.
*5.1 Opinion of Evans, Keane LLP
*23.1 Consent of Ernst & Young LLP
*24.1 Power of attorney of the officers and directors of the Company, included on the signature page hereof.
</TABLE>
* Filed herewith
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;
(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
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; 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 Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d)
II-3
<PAGE> 5
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 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.
II-4
<PAGE> 6
SIGNATURES AND POWER OF ATTORNEY
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 Boise, State of Idaho on August 1, 1996.
SUNSHINE MINING AND REFINING COMPANY
By: /s/ John S. Simko
-------------------------------
John S. Simko, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints John S. Simko, William W. Davis, and Robert S.
Peterson, and each of them (with full power to each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution,
for him and on his behalf and in his name, place and stead, in any and all
capacities, to sign, execute, and file with the Securities and Exchange
Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the securities
offered pursuant to this Registration Statement on Form S-8 under the
Securities Act of 1933, including any amendment or amendments relating thereto,
with all exhibits and any and all documents required to be filed with respect
thereto with any regulatory authority, granting unto said attorneys, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as he might or could
do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done.
II-5
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the Registrant in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ John S. Simko Director, President and August 1, 1996
- ---------------------------------- Chief Executive Officer --------------
John S. Simko
/s/ G. Chris Andersen Director August 1, 1996
- ---------------------------------- --------------
G. Chris Andersen
Director
- ---------------------------------- --------------
George M. Elvin
/s/ Daniel D. Jackson Director August 1, 1996
- ---------------------------------- --------------
Daniel D. Jackson
/s/ V. Dale Babbitt Director August 1, 1996
- ---------------------------------- --------------
V. Dale Babbitt
/s/ William W. Davis Executive Vice President, August 1, 1996
- ---------------------------------- Chief Financial and --------------
William W. Davis Accounting Officer
/s/ Robert B. Smith, Jr. Director June 18, 1996
- ---------------------------------- -------------
Robert B. Smith, Jr.
/s/ Oren G. Shaffer Director August 1, 1996
- ---------------------------------- --------------
Oren G. Shaffer
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
--------- -------
<S> <C>
4.1 Form of Warrant Agreement, dated as of February 3, 1994, between Sunshine and American Stock Transfer &
Trust Company, as Warrant Agent, filed as Exhibit 4.3 to Sunshine's Registration Statement on Form S-1
(Registration No. 33-73608), as amended and incorporated herein by reference.
4.2 Form of Warrant Certificate, filed as Exhibit 4.4 to Sunshine's Registration Statement on Form S-1
(Registration No. 33-73608), as amended and incorporated herein by reference.
4.3 Certificate of Designation, Rights and Preferences of $11.94 Cumulative Redeemable Preferred Stock of
Sunshine, filed as Exhibit 3.3 to Sunshine's Registration Statement on Form S-4 (Registration No.
33-22250) and incorporated herein by reference.
4.4 Specimen Stock Certificate of the Common Stock, $0.01 par value, of Sunshine, filed as Exhibit 4.2 to
Sunshine's Registration Statement on Form S-1 (Registration No. 33-63446) as amended, and incorporated
herein by reference.
4.5 Form of Indenture dated as of July 15, 1988, between Sunshine and MTrust Corp., National Association, with
respect to Sunshine's Convertible Subordinated Debentures due July 15, 2008, filed as Exhibit 4.25 to
Sunshine's Registration Statement on Form S-3 (Registration No. 33-21159) and incorporated herein by
reference.
4.6 First Supplemental Indenture, dated as of August 8, 1988, Second Supplemental Indenture dated as of
November 10, 1988, and Third Supplemental Indenture, dated as of April 10, 1991, by and between the
Company and Ameritrust Texas, N.A., the successor to MTrust Corp., National Association relating to the
issuance of the Debentures, filed as Exhibit 4.3 to Sunshine's Annual Report on Form 10-K for the fiscal
year ended December 31, 1990, and incorporated herein by reference.
4.7 Form of Fourth Supplemental Indenture, by and between the Company and Texas Commerce Bank National
Association, as successor to Ameritrust Texas National Association formerly known as MTrust Corp.,
National Association, relating to the issuance of the Debentures, filed as Exhibit 4.10 to Sunshine Merger
Company's Registration Statement on Form S-4, Registration No. 33-98876, and incorporated herein by
reference.
4.8 Form of Supplemental Warrant Agreement dated as of February 1, 1996 between Sunshine Merger Company and
American Stock Transfer & Trust Company, as Warrant Agent, relating to the Warrants ($2.12 exercise
price), filed as Exhibit to Sunshine Merger Company's Registration Statement on Form S-4, Registration No.
33-98876, and incorporated herein by reference.
*5.1 Opinion of Evans, Keane LLP
*23.1 Consent of Ernst & Young LLP
*24.1 Power of attorney of the officers and directors of the Company, included on the signature page hereof.
</TABLE>
* Filed herewith
<PAGE> 1
JAMES D. HOVREN
August 2, 1996
Sunshine Mining and Refining Company
877 W. Main Street, Suite 600
Boise, ID 83702
Gentlemen:
We have acted as counsel to Sunshine Mining and Refining Company, a
Delaware corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to up to 61,500 shares of the Company's common stock, par
value $.01 ("Common Stock") to be issued upon exercise of options to be granted
under the Company's 1987 Employee Non-Qualified Stock Option Plan; up to
326,500 shares of Common Stock to be issued upon exercise of options to be
granted under the Company's 1993 Incentive Stock Option Plan; and up to
10,000,000 shares of Common Stock to be issued upon exercise of options to be
granted under the Company's 1995 Employee Non-Qualified Stock Option Plan.
In connection therewith, we have examined and relied upon the
original, or copies certified to our satisfaction, of (i) the Certificate of
Incorporation and the Bylaws of the Company, as amended; (ii) The 1987 Employee
Non-Qualified Stock Option Plan; (iii) the 1993 Incentive Stock Option Plan;
(iv) the 1995 Employee Non-Qualified Stock Option Plan; (v) the Registration
Statement and any and all exhibits thereto; and (iv) such other documents as we
have deemed necessary for the expression of the opinions contained herein.
In making the foregoing examinations, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to various questions of fact
material to this opinion, where such facts have not been independently
established, and as to the content and form of the Certificate of
Incorporation, Bylaws, minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent we deemed reasonably
appropriate, upon representations or certificates of officers or directors of
the Company, without independent check or verification of their accuracy.
<PAGE> 2
Sunshine Mining and Refining Company
August 2, 1996
Page 2
Based upon the foregoing, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the Common
Stock, when issued upon proper exercise of options granted in compliance with
the 1987 Employee Non-Qualified Stock Option Plan, the 1993 Incentive Stock
Option Plan, or the 1995 Employee Non-Qualified Stock Option Plan, as the case
may be, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement on form
S-8.
Very truly yours,
EVANS, KEANE LLP
/s/ JAMES D. HOVREN
James D. Hovren
JDH:kmp
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) as filed with the Securities and Exchange Commission on August 2,
1996 pertaining to the Sunshine Mining and Refining Company 1995 Employee
Non-Qualified Stock Option Plan, the Sunshine Mining and Refining Company 1993
Incentive Stock Option Plan and the Sunshine Mining and Refining Company 1987
Employee Non-Qualified Stock Option Plan and therein of our report dated
February 28, 1996, with respect to the consolidated financial statements of
Sunshine Mining and Refining Company included in its Annual Report (Form
10-K) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
August 2, 1996
