As filed with the Securities and Exchange Commission on September 27, 1995.
Registration No. 33-
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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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NU-WEST INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 82-0415557
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
8400 EAST PRENTICE AVENUE
SUITE 1320
ENGLEWOOD, COLORADO 80111
(303) 721-1396
(Address of principal executive offices including zip code)
1994 EMPLOYEE STOCK INCENTIVE PLAN
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full titles of the plans)
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STEVEN W. GAMPP WITH COPIES TO:
VICE PRESIDENT, TREASURER AND SECRETARY KENNETH S. WITT, ESQ.
NU-WEST INDUSTRIES, INC. DAVIS, GRAHAM & STUBBS, L.L.C.
8400 EAST PRENTICE AVENUE, SUITE 1320 370 17TH STREET, SUITE 4700
ENGLEWOOD, COLORADO 80111 DENVER, COLORADO 80202
(303) 721-1396
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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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<F1> offering price<F2> registration fee
====================================================================================================================
<S> <C>
Common Stock, par value $.01 265,001 $6.41 $1,698,236.25 $585.60
per share shares
====================================================================================================================
<FN>
<F1> Weighted average price of outstanding options.
<F2> Estimated solely for the purpose of determining the amount of the registration fee pursuant to Rule 457(h),
and is based upon the sum of the product of options for 265,001 shares times their respective exercise prices.
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement covers the registration of
(i) 260,834 shares of Common Stock of Nu-West Industries, Inc., a
Delaware corporation (the "Company"), issuable pursuant to options
outstanding under the Company's 1994 Employee Stock Incentive Plan
(the "Employee Plan"); and (ii) 4,167 shares of Common Stock issuable
to a director of the Company pursuant to an option outstanding under
the Company's Nonemployee Director Stock Option Plan (the "Directors'
Plan" and, together with the Employee Plan, the "Plans").
Although up to 1,800,000 shares of Common Stock are issuable
under the Employee Plan and up to 300,000 shares are issuable under
the Directors' Plan, only shares covered by outstanding options are
being registered hereunder. A cash tender offer for the Company's
Common Stock is pending, and the Company does not anticipate that any
additional options or stock will be issued under the Plans.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the
Commission are hereby incorporated in this Registration Statement by
reference:
(a) Annual Report on Form 10-K for the year ended June 30,
1995;
(b) All other reports filed pursuant to Section 12(a) or
15(d) of the Securities Exchange Act of 1934, as
amended, since June 30, 1995;
(c) The description of the Company's Common Stock, par
value $.01 per share, contained in the Company's
Registration Statement on Form 8-A, as filed with the
Commission on December 29, 1988;
All documents filed by the Company 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, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof
from the date of filing such documents.
4. DESCRIPTION OF SECURITIES.
Not applicable.
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits
indemnification of directors, officers, employees and agents of a
corporation under certain conditions and subject to certain
limitations. The Company's Bylaws and Restated Certificate of
Incorporation provide that the Company shall, to the full extent
permitted by the General Corporation Law of the State of Delaware, as
amended from time to time, indemnify all directors and officers of the
Company. The Company maintains a directors and officers insurance
policy with a $20,000,000 coverage limit per occurrence and in the
aggregate per year.
Each of the Plans provides that no member of the Committee
administering the plan shall be personally liable for any action,
determination or interpretation made in good faith
II-1<PAGE>
with respect to the plan, and all members of the Committee shall, in
addition to their rights as directors, be fully protected by the
Company with respect to any such action, determination or
interpretation.
In addition, the Company's Restated Certificate of
Incorporation eliminates in certain circumstances the monetary
liability of directors of the Company for a breach of their fiduciary
duty as directors. This provision does not eliminate the liability of
a director (i) for a breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions by the
director not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) for liability arising under
Section 174 of the Delaware General Corporation Law (relating to the
declaration of dividends and purchase or redemption of shares in
violation of the Delaware General Corporation Law); or (iv) for any
transaction from which the director derived an improper personal
benefit.
Pursuant to the Agreement and Plan of Merger dated August 9,
1995 (the "Merger Agreement") among the Company, Agrium Acquisition
Corporation, a Delaware corporation (the "Purchaser") and Agrium Inc.,
a Canadian corporation (the "Parent"), the Company must indemnify and
hold harmless, and after the effective date of the merger of the
Purchaser with and into the Company (the "Effective Date"), the Parent
and the surviving corporation must indemnify and hold harmless, each
present employee, agent, director or officer of the Company and the
Company's subsidiaries (the "Indemnified Parties") (a) with respect to
any losses, claims, damages, liabilities, costs and expenses,
including reasonable attorneys' and expert witness fees, arising out
of or pertaining to any action or omission occurring prior to the
Effective Date (including any which arise out of or pertain to the
transactions contemplated by the Merger Agreement) and (b) as provided
in their respective charters or by-laws in effect at the date hereof
(to the extent consistent with applicable law), which provisions will
survive the merger and will continue in full force and effect for a
period of not less than five years from the Effective Date.
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
8. EXHIBITS
4.1 Restated Certificate of Incorporation,/1/ as amended.
4.2 Bylaws, as amended./2/
4.3 Specimen Stock Certificate./3/
4.4 Nonemployee Director Stock Option Plan./4/
4.5 1994 Employee Stock Incentive Plan./4/
II-2<PAGE>
5.1 Opinion and Consent of Davis, Graham & Stubbs, L.L.C.
23.1 Consent of Davis, Graham & Stubbs, L.L.C. See
Exhibit 5.1.
23.2 Consent of Arthur Anderson LLP.
24.1 Power of Attorney (see pages II-5 to II-6).
- ---------------------
/1/ Incorporated herein by reference from the Exhibits to the
Company's Registration Statement on Form S-1 as filed on
November 9, 1988 (Registration No. 33-25448), the Company's
Report on Form 10-Q, as filed on November 12, 1993 and the
Company's Report on Form 10-Q, as filed on January 31, 1995.
/2/ Incorporated herein by reference from the Exhibits to Amendment
No. 1 to the Company's Registration Statement on Form S-1 as
filed on November 18, 1988 (Registration No. 33-25448).
/3/ Incorporated herein by reference from the Exhibits to the
Company's Registration Statement on Form S-1 as filed on
November 9, 1988 (Registration No. 33-25448).
/4/ Incorporated herein by reference from the Exhibits to the
Company's Proxy Statement as filed on October 11, 1994.
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.
II-3<PAGE>
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 adirector, 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>
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 Englewood,
State of Colorado, on the 27th day of September, 1995.
NU-WEST INDUSTRIES, INC.
By Steven W. Gampp
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Steven W. Gampp, Vice President,
Treasurer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints jointly and
severally, Steven W. Gampp, Craig D. Harlen and Mark R. Sanders, 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 any and all amendments (including post-
effective amendments) to this Registration Statement on Form S-8, and
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.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons in the capacities and on the date indicated.
Signature Title Date
Craig D. Harlen
- ---------------------- Chairman of the Board, September 27, 1995
Craig D. Harlen President and Chief Executive
Officer (Principal Executive
Officer)
Mark R. Sanders
- ---------------------- Senior Vice President, Chief September 27, 1995
Mark R. Sanders Financial Officer and Director
(Principal Financial and
Accounting Officer)
- ---------------------- Director September __, 1995
Cecil D. Andrus
II-5<PAGE>
Wesley W. Lang
- ---------------------- Director September 27, 1995
Wesley W. Lang
Peter B. Pfister
- ---------------------- Director September 27, 1995
Peter B. Pfister
II-6<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
- -----------------------------------------------------------------------
5.1 Opinion and Consent of Davis, Graham & Stubbs, L.L.C.
23.1 Consent of Davis, Graham & Stubbs, L.L.C.
See Exhibit 5.1.
23.2 Consent of Arthur Anderson LLP.
II-7
[LETTERHEAD OF DAVIS, GRAHAM & STUBBS, L.L.C. APPEARS HERE]
September 27, 1995
Nu-West Industries, Inc.
8400 East Prentice Avenue, Suite 1320
Englewood, Colorado 80111
Re: Sale of Shares of Common Stock Pursuant
to Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Nu-West Industries, Inc. (the
"Company") in connection with the registration by the Company of
265,001 shares of Common Stock ($.01 par value) (the "Shares"), which
may be sold by the Company pursuant to the Company's 1994 Employee
Stock Incentive Plan and Nonemployee Director Stock Option Plan,
described in the Registration Statement on Form S-8 of the Company,
being filed with the Securities and Exchange Commission concurrently
herewith. 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, 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 sold as contemplated by the
Registration Statement, will be legally issued, fully paid and non-
assessable shares of 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.
Very truly yours,
DAVIS, GRAHAM & STUBBS, L.L.C.
DAVIS, GRAHAM & STUBBS, L.L.C.
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated July 28, 1995 (except with respect to the merger
agreement and related shareholder litigation, as described in Note 15,
as to which the date is August 23, 1995) included in Nu-West
Industries, Inc.'s Form 10-K for the year ended June 30, 1995 and to
all references to our firm included in this registration statement.
Arthur Andersen LLP
Boise, Idaho
September 26, 1995
