AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 2000
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
MACKENZIE INVESTMENT MANAGEMENT INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 59-2522153
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION
NUMBER)
VIA MIZNER FINANCIAL PLAZA
700 SOUTH FEDERAL HIGHWAY, SUITE 300, BOCA RATON, FL 33432
(ADDRESS AND ZIP CODE OF PRINCIPAL EXECUTIVE OFFICES)
-----------------
MACKENZIE INVESTMENT MANAGEMENT INC.
1994 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
-----------------
C. WILLIAM FERRIS
MACKENZIE INVESTMENT MANAGEMENT INC.
VIA MIZNER FINANCIAL PLAZA
700 SOUTH FEDERAL HIGHWAY, SUITE 300
BOCA RATON, FL 33432
TELEPHONE: (561) 393-8900
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------
COPY TO:
JOSEPH R. FLEMING, ESQ.
DECHERT PRICE & RHOADS
TEN POST OFFICE SQUARE - SOUTH
BOSTON, MA 02109
(617) 728-7162
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================== ======================== =================== ====================== =====================
AMOUNT PROPOSED PROPOSED MAXIMUM
TITLE OF TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (1) PRICE (1) REGISTRATION FEE
- ---------------------------------- ------------------------ ------------------- ---------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share 3,114,220 shares $4.19 $13,048,581.80 $3,444.83
================================== ======================== =================== ====================== =====================
</TABLE>
(1) Estimated solely for purposes of determining the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act") on the basis of Canadian $6.075 per
share (U.S. $4.19 per share), the average of the high and low prices of
the Registrant's Common Stock as reported on the Toronto Stock Exchange
on February 1, 2000, expressed in U.S. dollars, based on the noon
buying rate in the City of New York for cable transfers in Canadian
dollars as certified for customs purposes by the Federal Reserve Bank
of New York, which, on February 1, 2000 was Cdn $1.00 = US $0.69.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I of Form S-8
will be sent or given to employees eligible to participate in the Mackenzie
Investment Management Inc. 1994 Stock Option Plan (the "Plan") as specified by
Rule 428(b)(1) of the Securities Act. These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission"), are incorporated by reference in this
Registration Statement:
(a) The Registrant's registration statement on Form 10 dated July
28, 1999, as amended, as filed with the Commission pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") containing the Registrant's
audited financial statements as of March 31, 1999, 1998 and
1997 and unaudited interim financial statements as of June 30,
1999.
(b) The Registrant's quarterly report on Form 10-Q for the period
ended September 30, 1999, as filed with the Commission
pursuant to Section 13(a) of the Exchange Act on October 25,
1999, and the Registrant's quarterly report on Form 10-Q for
the period ended December 31, 1999, as filed with the
Commission pursuant to Section 13(a) of the Exchange Act on
January 25, 2000.
(c) The description of the Common Stock of the Registrant
contained in the Registrant's registration statement on Form
10 dated July 28, 1999, as filed with the Commission pursuant
to Section 12(g) of the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
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 either terminates the offering of
the securities registered pursuant to this Registration Statement or deregisters
such securities, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents. Any statement
contained 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 herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Delaware law authorizes a Delaware corporation to eliminate or limit
the personal liability of a director to the corporation and its shareholders for
monetary damages for breach of certain fiduciary duties as a director. The
Registrant believes that such a provision is beneficial in attracting and
retaining qualified directors and, accordingly, the Registrant's Bylaws include
a provision eliminating liability for monetary damages for any breach of
fiduciary duty as a director, except: (1) for any breach of the duty of loyalty
to the Registrant or its shareholders; (2) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (3)
for any transaction for which the director derived an improper personal benefit;
(4) for certain other actions. Thus, pursuant to Delaware law, directors of the
Registrant are not insulated from liability for breach of their duty of loyalty
(requiring that, in making a business decision, directors act in good faith and
in the honest belief that the action was taken in the best interest of the
corporation), or for claims arising under the federal securities laws. The
foregoing provisions of the Bylaws may reduce the likelihood of derivative
litigation against directors and may discourage or deter shareholders or
management from bringing a lawsuit against directors for breaches of their
fiduciary duties, even though such an action, if successful, might otherwise
have benefited the Registrant and its shareholders.
Article 4 of the Registrant's Bylaws provides as follows:
RIGHT TO INDEMNIFICATION
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,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that such person is or was a director or
officer of the Company or a constituent corporation absorbed in a consolidation
or merger, or is or was serving at the request of the Company or a constituent
corporation absorbed in a consolidation or merger, as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise, or
is or was a director or officer of the Company serving at its request as an
administrator, trustee or other fiduciary of one or more of the employee benefit
plans of the Company or other enterprise, against expenses (including attorney's
fees), liability and loss actually and reasonably incurred or suffered by such
person in connection with such proceeding, whether or not the indemnified
liability arises or arose from any threatened, pending or completed proceedings
by or in the right of the Company, except to the extent that such
indemnification is prohibited by applicable law.
ADVANCE OF EXPENSES
Expenses incurred by a director or officer of the Company in defending
a proceeding shall be paid by the Company in advance of the final disposition of
such proceedings subject to the provisions of any applicable statute.
PROCEDURE FOR DETERMINING PERMISSIBILITY
To determine whether any indemnification or advance of expenses under
this Article 4 is permissible, the board of directors by a majority vote of a
quorum consisting of directors not parties to such proceedings may, and on
request of any person seeking indemnification or advance of expenses shall be
required to, determine in each case whether the applicable standards in any
applicable statue have been met, or such determination shall be made by
independent legal counsel if such quorum is not obtainable, or, even if
obtainable, a majority vote of a quorum of disinterested directors so directs,
provided that, if there has been a change in control of the Company between the
time of the action or failure to act giving rise to the claim for
indemnification or advance of expenses and the time such claim is made, at the
option of the person seeking indemnification or advance of expenses, the
permissibility of indemnification or advance of expenses shall be determined by
independent legal counsel. The reasonable expenses of any director or officer in
prosecuting a successful claim for indemnification, and the fees and expenses of
any special legal counsel engaged to determine permissibility of indemnification
or advance of expenses, shall be borne by the Company.
CONTRACTUAL OBLIGATION
The obligations of the Company to indemnify a director or officer under
this Article 4, including the duty to advance expenses, shall be considered a
contract between the Registrant and such director or officer, and no
modification or repeal of any provision of this Article 4 shall affect, to the
detriment of the director or officer, such obligations of the Company in
connection with a claim based on any act or failure to act occurring before such
modification or repeal.
INDEMNIFICATION NOT EXCLUSIVE; INURING OF BENEFITS
The indemnification and advance of expenses provided by this Article 4
shall not be deemed exclusive of any other right to which one indemnified may be
entitled under any statue, provision of the Certificate of Incorporation, these
bylaws, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in such person's official capacity and as to action in another
capacity while holding such office, and shall inure to the benefit of the heirs,
executors and administrators of any such person.
INSURANCE AND OTHER INDEMNIFICATION
The board of directors shall have the power to (i) authorize the
Registrant to purchase and maintain, at the Company's expense, insurance on
behalf of the Company and on behalf of others to the extent that power to do so
has not been prohibited by statue, (ii) create any fund of any nature, whether
or not under the control of a trustee, or otherwise secure any of its
indemnification obligations, and (iii) give other indemnification to the extent
permitted by statue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not Applicable.
ITEM 8. EXHIBITS.
--------
There are filed with this Registration Statement the following
exhibits:
4.1 Certificate of Incorporation of Registrant, as amended (1)
4.2 By-laws of Registrant, as amended (1)
4.3 Mackenzie Investment Management Inc. 1994 Stock Option Plan (1)
5.1 Opinion of Dechert Price & Rhoads as to the legality of securities being
registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Dechert Price & Rhoads (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
- ----------------
(1) Filed as an Exhibit to Amendment No. 1 to Registrant's Form 10 Registration
Statement (No. 000-17994), dated October 14, 1999, and incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
------------
UNDERTAKINGS REQUIRED BY ITEM 512(A) OF REGULATION S-K:
The undersigned Registrant hereby undertakes:
(1) To file, during any period 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 (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purposes of determining any liability under the Securities
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.
(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.
UNDERTAKINGS REQUIRED BY ITEM 512(B) OF REGULATION S-K:
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
UNDERTAKINGS REQUIRED BY ITEM 512(H) OF REGULATION S-K:
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 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.
<PAGE>
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act, 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 Boca
Raton, Florida, on this 2nd day of February 2000.
MACKENZIE INVESTMENT MANAGEMENT INC.
BY: /S/ KEITH J. CARLSON
-----------------------
Keith J. Carlson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 2nd day of February, 2000.
NAME CAPACITY DATE
/S/ KEITH J. CARLSON
Keith J. Carlson President, Director and February 2, 2000
Chief Executive Officer
/S/ C. WILLIAM FERRIS
C. William Ferris Senior Vice President February 2, 2000
and Secretary/Treasurer
S/ BEVERLY J. YANOWITCH
Beverly J. Yanowitch Vice President and February 2, 2000
Chief Financial Officer
*
- -----------------------
Neil Lovatt Chairman and Director February 2, 2000
/S/ JAMES W. BROADFOOT III
James W. Broadfoot III Senior Vice President February 2, 2000
and Director
*
- -----------------------
Alan J. Dilworth Director February 2, 2000
*
- -----------------------
Allan S. Mostoff, Esq. Director February 2, 2000
*
- -----------------------
James L. Hunter Director February 2, 2000
*
- -----------------------
Alasdair J. McKichan Director February 2, 2000
*
- -----------------------
Michael R. Peers Director February 2, 2000
*
- -----------------------
Dolph W. von Arx Director February 2, 2000
* Filed pursuant to a power of attorney dated September 24, 1999, attached
hereto.
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints C. William Ferris, Keith J. Carlson and Joseph R. Fleming, and each of
them, his true and lawful attorney-in-fact and agent with full powers of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign the Registration Statement on Form S-8 and the
Registration Statement on Form 10 of Mackenzie Investment Management Inc. and
any and all amendments and supplements (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent 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, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
NAME CAPACITY
DATE
/S/ KEITH J. CARLSON
Keith J. Carlson President, Director and
September 24, 1999 Chief Executive Officer
/S/ C. WILLIAM FERRIS
C. William Ferris Senior Vice President, Chief Financial
September 24, 1999 Officer and Secretary/Treasurer
/S/ NEIL LOVATT
Neil Lovatt Chairman and Director
September 24, 1999
/S/ JAMES W. BROADFOOT III
James W. Broadfoot III Executive Vice President and Director
September 24, 1999
/S/ ALAN J. DILWORTH
Alan J. Dilworth Director
September 24, 1999
/S/ ALLAN S. MOSTOFF, ESQ.
Allan S. Mostoff, Esq. Director
September 24, 1999
/S/ JAMES L. HUNTER
James L. Hunter Director
September 24, 1999
/S/ ALASDAIR J. MCKICHAN
Alasdair J. McKichan Director
September 24, 1999
/S/ MICHAEL R. PEERS
Michael R. Peers Director
September 24, 1999
/S/ DOLPH W. VON ARX
Dolph W. von Arx Director
September 24, 1999
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
4.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1.1 to Amendment No. 1 to
Registrant's Registration Statement on Form 10, Registration No.
000-17994 (the "Form 10"), filed October 14, 1999 ("Amendment No. 1")
4.2 By-laws of the Registrant, as amended (incorporated by reference to
Exhibit 3.2.1 of Registrant's Amendment No. 1).
4.3 Mackenzie Investment Management Inc. 1994 Stock Option Plan
(incorporated by reference to Exhibit 10.8 of Registrant's Amendment
No. 1)
5.1 Opinion of Dechert Price & Rhoads
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Dechert Price & Rhoads (included in Exhibit 5.1 to this
Registration Statement)
24.1 Power of Attorney (included on signature page)
<PAGE>
Exhibit 5.1
OPINION RE LEGALITY
DECHERT PRICE & RHOADS
TEN POST OFFICE SQUARE - SOUTH
BOSTON, MA 02109
February 2, 2000
Mackenzie Investment Management Inc.
Via Mizner Financial Plaza
700 South Federal Highway, Suite 300
Boca Raton, FL 33432
Dear Sirs:
We have acted as counsel for Mackenzie Investment Management Inc., a
Delaware corporation (the "Company"), in connection with the proposed filing
with the Securities and Exchange Commission expected to be made on or about
February 2, 2000, under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-8 (the "Registration Statement") for the
purpose of registering 3,114,220 shares of common stock of the Company, $.01 par
value per share, to be offered pursuant to the Mackenzie Investment Management
Inc. 1994 Stock Option Plan (the "Plan").
In such capacity, we have examined the Plan, Certificate of
Incorporation and By-Laws of the Company, copies of certain resolutions of the
Board of Directors of the Company, and such other corporate records and
documents of the Company as we have deemed necessary or appropriate for the
purpose of the opinion expressed herein.
Based upon the foregoing examination, it is our opinion that, when
issued against receipt of the agreed purchase price therefor, the shares will be
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever appearing in the
Registration Statement and any amendment thereto.
We are not members of the Bar of the State of Delaware, which law
governs the validity of the Shares. However, we have reviewed the Delaware
General Corporation Law and examined such other documents and made such further
investigation as we have deemed necessary for the purpose of rendering the
opinion expressed herein.
Very truly yours,
DECHERT PRICE & RHOADS
<PAGE>
Exhibit 23.1
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 April 23, 1999, relating to the
financial statements, which appears in the Form 10 of Mackenzie Investment
Management Inc.
PRICWATERHOUSECOOPERS LLP
January 31, 2000
Fort Lauderdale, Florida
