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As filed with the Securities and Exchange Commission on September 28, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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PHILIP SERVICES CORP.
(Exact name of Registrant as specified in its charter)
PROVINCE OF ONTARIO, CANADA NOT APPLICABLE
(Province or other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
100 KING STREET, P.O. BOX 2440, LCD1
HAMILTON, ONTARIO, CANADA
L8N 4J6
(905) 521-1600
(Address and telephone number of Registrant's principal executive offices)
PHILIP SERVICES CORP.
401(K) PLAN
(Full title of plan)
PHILIP ENVIRONMENTAL (NEW YORK) INC.
C/O CT CORPORATION SYSTEM
1633 BROADWAY
NEW YORK, NEW YORK 10019
(212) 664-1666
(Name, address and telephone number of agent for service)
---------------------------------
Copy to:
CHRISTOPHER W. MORGAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ROYAL BANK PLAZA, NORTH TOWER
200 BAY STREET, SUITE 1820
TORONTO, ONTARIO, CANADA M5J 2J4
(416) 777-4700
---------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF REG-
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) ISTRATION FEE
<S> <C> <C> <C> <C>
COMMON SHARES, NO PAR VALUE 500,000 $0.85 $425,000 $125.38
INTERESTS IN THE PHILIP SERVICES CORP. (3) (3) (3) (3)
401(K) PLAN
</TABLE>
NOTES
(1) The Common Shares being registered consist of shares to be acquired in
open market purchases pursuant to the Philip Services Corp. 410(k) Plan.
(2) Calculated in accordance with Rules 457(h)(1) and 457(c) under the
Securities Act of 1933, as amended (the "Securities Act"), based on the
average of the high and low prices of the Common Shares as reported on The
New York Stock Exchange on September 21, 1998.
(3) In addition, pursuant to Section 3(a)(2) and Rule 416(c) under the
Securities Act, this Registration Statement covers an indeterminate amount
of interests to be offered or sold pursuant to the Philip Services Corp.
401(k) Plan. Pursuant to Rule 457(h)(2) under the Securities Act, no
separate registration fee is required with respect to the plan interests
being registered hereby.
PAGE 1 OF 11 PAGES
EXHIBIT INDEX ON PAGE 9
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, or excerpts thereof as indicated, filed with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
(a) Annual Report on Form 10-K/A of Philip Services Corp. (the
"Registrant") for the fiscal year ended December 31, 1997, filed
with the Commission on May 15, 1998;
(b) All reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
since December 31, 1997; and
(c) The description of the Common Shares included in the
Registration Statement on Form 20-F (Commission File No. 0-20854) of
the Registrant, filed with the Commission on February 9, 1993.
All documents hereafter filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Business Corporations Act (Ontario), the Registrant may
indemnify a present or former director or officer or a person who acts or acted
at the Registrant's request as a director or officer of another company of
which the Registrant is or was a stockholder 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 such position, and provided that the
director or officer acted honestly and in good faith with a view to the best
interests of the Registrant and, in the case of a criminal or administrative
action or proceeding that is enforced by a monetary penalty, had reasonable
grounds for believing that his conduct was lawful. Such indemnification may,
with the approval of the court, be made in connection with the procuring of a
judgment in favor of the Registrant or such other company if the conditions set
forth above have been fulfilled. A director or officer is entitled to
indemnification from the Registrant as a matter of right if he was
substantially successful on the merits and fulfilled the conditions set forth
above.
In accordance with the Business Corporations Act (Ontario), the By-laws of
the Registrant provide that the Registrant shall indemnify a director or
officer, a former director or officer, or a person who acts or acted at the
Registrant's request as a director or officer of a company in which the
Registrant 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 was made a part by reason of his being or having been a director or officer
of the Registrant or such other company, if he acted honestly and in good faith
with a view to the best interests of the Registrant and, in the case of a
criminal or administrative action or proceeding that is enforced by
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monetary penalty, he had reasonable grounds for believing that his conduct was
lawful. The By-laws also provide that the Registrant shall indemnify the above
described persons in such other circumstances as the Business Corporations Act
(Ontario) permits or requires. The By-laws do not limit the right of a person
entitled to indemnity to claim indemnity apart from the provisions of the
By-laws.
The Registrant provides insurance for the benefit of directors and
officers of the Company against liability incurred by, arising from or against
them for certain of their acts, errors or omissions. These policies provide
maximum coverage in any one policy year of an aggregate of $100 million subject
to a $500,000 deductible. In the last completed fiscal year, the total premium
for directors' and officers' liability insurance was $571,850. The premiums
for the policy are not allocated between directors and officers as separate
groups.
Reference is made to Item 9 for the undertakings of the Registrant with
respect to indemnification for liabilities arising under the Securities Act of
1933 (the "Securities Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are attached hereto:
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
4.1* Indenture, dated as of June 1, 1989, relating to 7%
Convertible Subordinated Debentures due 2014 between Allwaste,
Inc. and Texas Commerce Trust Company of New York
4.2* Specimen of Common Share Certificate
23.1 Consent of Deloitte & Touche
24.1 Powers of Attorney (included on page 6 of this Registration
Statement)
</TABLE>
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* Incorporated by reference to the exhibits filed with the Company's Annual
Report on Form 10-K/A, filed with the Securities and Exchange Commission on May
15, 1998.
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ITEM 9. UNDERTAKINGS.
A. The 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 this Registration
Statement or any material change to such information in this
Registration Statement.
2. That, for the purpose 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.
B. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Sections 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 this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, 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 may be permitted to directors, officers and
controlling persons of the Registrant by the Registrant pursuant to
existing provisions or arrangements, or otherwise, the Registrant
has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities 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 of whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
D. The Registrant will submit or has submitted the Philip
Services Corp. 401(k) Plan and any amendment thereto to the Internal
Revenue Service (the "IRS") in a timely manner, and has made or will
make all changes required by the IRS in order to qualify the plan.
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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 Hamilton, Province of Ontario, Canada, on
September 28, 1998.
PHILIP SERVICES CORP.
By: /s/ Colin Soule
---------------------------------
Colin Soule
Executive Vice President, General
Counsel and Corporate Secretary
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POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each officer or director of
Philip Services Corp. whose signature appears below constitutes and appoints
Felix Pardo and Phillip Widman, and each of them, with full power to act
without the other, his true and lawful attorneys-in-fact and agents, with full
and several power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including post-effective
amendments, and supplements 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, granting unto said
attorneys-in-fact and agents 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 they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or his or their substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by or on behalf of the following
persons in the capacities indicated on September 28, 1998.
Signature Title
--------------------- ------------------------------
/s/ Felix Pardo President, Chief
---------------------
Felix Pardo Executive Officer and Director
(Principal Executive
Officer)
/s/ Phillip Widman Executive Vice President
---------------------
Phillip Widman and Chief Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Robert L. Knauss Director
---------------------
Robert L. Knauss
/s/ Roy Cairns Director
---------------------
Roy Cairns
/s/ Allen Fracassi Director
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Allen Fracassi
/s/ Peter Green Director
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Peter Green
/s/ William E. Haynes Director
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William E. Haynes
Director
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Harland A. Riker
/s/ Derrick Rolfe Director
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Derrick Rolfe
/s/ Herman Turkstra Director
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Herman Turkstra
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, the
undersigned certifies that it is the duly authorized United States
representative of Philip Services Corp. and has duly caused this Registration
Statement to be signed on behalf of it by the undersigned, thereunto duly
authorized, in the City of Hamilton, Province of Ontario, Canada, on
September 28, 1998.
PHILIP ENVIRONMENTAL (NEW YORK) INC.
(Authorized U.S. Representative)
By: /s/ Colin Soule
------------------
Name: Colin Soule
Title: Secretary
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The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hamilton, Province of
Ontario, Canada, on September 28, 1998.
PHILIP SERVICES CORP. 401(K) PLAN
By: PHILIP SERVICES CORP.,
Plan Administrator
By: /s/ Felix Pardo
----------------------------------
Name: Felix Pardo
Title: President and Chief Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page No.
- ------- ----------- -------
<S> <C> <C>
4.1* Indenture, dated as of June 1, 1989, relating to 7% Convertible
Subordinated Debentures due 2014 between Allwaste, Inc. and Texas
Commerce Trust Company of New York ..............................
4.2* Specimen of Common Share Certificate
23.1 Consent of Deloitte & Touche .................................... 11
24.1 Powers of Attorney (included on page 6 of this Registration
Statement) ......................................................
</TABLE>
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* Incorporated by reference to the exhibits filed with the Company's Annual
Report on Form 10-K/A, filed with the Securities and Exchange Commission on May
15, 1998.
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Philip Services Corp. (the "Company") on Form S-8 of our report, dated March 4,
1998 (May 14, 1998 as to Note 3), on the consolidated balance sheets of the
Company as at December 31, 1997 and 1996 and the consolidated statements of
earnings, retained earnings and cash flows for each of the three years in the
period ended December 31, 1997, included in the Company's Annual Report on Form
10-K/A for the fiscal year ended December 31, 1997, filed with the Securities
and Exchange Commission on May 15, 1998.
/s/ DELOITTE & TOUCHE
Mississauga, Ontario
September 18, 1998
