1
As filed with the Securities and Exchange Commission on May 24, 2001.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SIPEX Corporation
(Exact name of registrant as specified in its charter)
Massachusetts 04-6135748
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
22 Linnell Circle
Billerica, MA 01821
(978) 667-8700
(Address of Principal Executive Offices) (Zip Code)
-----------------------------
2000 Non-Qualified Stock Option Plan
(Full title of the plan)
-----------------------------
James E. Donegan
Chief Executive Officer
SIPEX Corporation
22 Linnell Circle
Billerica, MA 01821
(978) 667-8700
(Name and address including zip code and telephone number,
including area code, of agent for service)
-----------------------------
Copies to:
Kenneth J. Gordon, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
2
-2-
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed maximum
Title of securities Amount to be offering aggregate Amount of
to be registered registered(1) price per share offering price registration fee
2000 NON-QUALIFIED STOCK OPTION PLAN
Common Stock, par value $.01 per share 494,770 $12.688(2) $ 6,277,641.76(2) $1,569.41(2)
55,000 $ 6.870(2) $ 377,850.00(2) $ 94.46
450,230 $12.99 (3) 5,848,487.70(3) $1,462.12(3)
NON-PLAN OPTIONS
Common Stock, par value 710,000 $12.688(2) $ 9,008,480.00(2) $2,252.12(2)
$.01 per share 55,000 $ 6.870(2) $ 377,850.00(2) $ 94.46
--------- -------------- ---------
TOTAL 1,765,000 $21,890,309.46 $5,472.57
(1) Plus such additional shares as may be required pursuant to the plan
in the event of a stock dividend, split-up of shares,
recapitalization or other similar change in the Common Stock.
(2) Such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h)(1) of Regulation C,
the aggregate offering price and the fee have been computed upon the
basis of the price at which the options may be exercised. The
offering price per share set forth for such shares is the exercise
price per share at which such options are exercisable.
(3) Pursuant to Rule 457(c) and (h)(1) of Regulation C of the Securities
Act, the price of $12.99 per share, is the average of the high and
low prices of the Common Stock as reported on The Nasdaq National
Market on May 22, 2001 and is set forth solely for purposes of
calculating the filing fee for those shares without a fixed exercise
price.
3
-3-
This Registration Statement registers additional securities of the
same class as other securities for which (i) Registration Statement No.
333-06123 on Form S-8 as filed with the Securities and Exchange Commission on
June 17, 1996 (relating to the Registrant's 1988 Non-Statutory Stock Option
Plan, 1991 Non-Statutory Stock Option Plan, 1993 Stock Option and Incentive
Plan, 1994 Stock Option and Incentive Plan, 1996 Incentive Stock Option Plan,
1996 Non-Employee Director Stock Option Plan and 1996 Employee Stock Purchase
Plan) is effective, (ii) Registration Statement No. 333-32329 on Form S-8 as
filed with the Securities and Exchange Commission on July 29, 1997 relating to
the Registrant's 1997 Stock Option Plan is effective, and (iii) Registration
Statement No. 333-31410 on Form S-8 as filed with the Securities and Exchange
Commission on March 1, 2000 relating to the Registrant's 1999 Stock Option Plan
is effective. Pursuant to General Instruction E to Form S-8, the contents of the
above-listed Registration Statements are hereby incorporated by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1
will be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2
will be sent or given to employees as specified by Rule 428(b)(1). In accordance
with the rules and regulations of the Commission and the instructions to Form
S-8, such documents are not being filed with the Commission either as part of
the Registration Statement or as prospectuses or prospectus supplements pursuant
to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by SIPEX Corporation (the "Registrant")
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated in this Registration Statement by
reference as of their respective dates:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000, filed with the Commission on
March 23, 2001;
(b) The Registrant's Quarterly Report on From 10-Q for the
quarter ended March 31, 2001;
(c) The section entitled "Description of Registrant's
Securities to be Registered" contained in the Registrant's
registration statement on Form 8-A filed with the
Commission on March 1, 1996 pursuant to Section 12(g) of
the Exchange Act and incorporating by reference the
information contained in the Registrant's Registration
Statement on Form S-1 (SEC File No. 333-14639) initially
filed with the Commission on March 1, 1996.
All documents subsequently filed with the Commission 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 which indicates that all
securities offered herein have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
4
-4-
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Massachusetts General Laws Chapter 156B, Section 67 provides that a
corporation may indemnify its directors and officers to the extent specified in
or authorized by (i) the articles of organization, (ii) a by-law adopted by the
shareholders, or (iii) a vote adopted by the holders of a majority of the shares
of stock entitled to vote on the election of directors. In all instances, the
extent to which a corporation provides indemnification to its directors and
officers under Section 67 is optional. Massachusetts General Laws Chapter 156B,
Section 67 forbids the indemnification of any person with respect to any matter
to which he shall have been adjudicated in any proceeding not to have acted in
good faith in the reasonable belief that his action was in the best interest of
the corporation.
The Company's Restated By-Laws indemnifies the directors and officers
against liabilities arising out of legal proceedings brought against them by
reason of their status as directors and officers or by reason of their agreeing
to serve, at the request of the Company, as a director or officer of another
organization. Under the Restated By-Laws, each director and officer shall be
indemnified by the Company for all costs and expenses (including attorneys'
fees), judgments, liabilities and amounts paid in settlement of such
proceedings, even if he is not successful on the merits, if he acted in good
faith in the reasonable belief that his action was in the best interest of the
Company. The Board of Directors may authorize advancing litigation expenses to a
director or officer at his request upon receipt of an undertaking by such
director or officer to repay such expenses if it is ultimately determined that
he is not entitled to indemnification for such expense. The Restated By-Laws
provide that the directors and officers of the Company shall be indemnified by
the Company to the fullest extent authorized by Massachusetts Law, as it now
exists or may in the future be amended. In addition, the Restated Articles
provide that the directors of the Company will not be personally liable for
monetary damages to the Company for breaches of their fiduciary duty as
directors, unless they violated their duty of loyalty to the Company or its
shareholders, acted in bad faith, knowingly or intentionally violated the law,
authorized illegal dividends or redemptions or derived an improper personal
benefit from their action as directors.
The Company has entered into separate indemnification agreements with
each of its directors and executive officers, whereby the Company agreed, among
other things, (i) to indemnify them to the fullest extent permitted by the
Business Corporation Law of the Commonwealth of Massachusetts, subject to
specified limitations, against certain liabilities actually and reasonably
incurred by them in any proceedings in which they are a party that may arise by
reason of their status as directors, officers, employees or agents or may arise
by reason of their serving as such at the request of the Company for another
entity and (ii) to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified. The Company intends to enter
into similar separate indemnification agreements with any directors or officers
who may join the Company in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
5
-5-
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1* Restated Articles of Organization of the Registrant (filed as
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1, File No. 333-1328, and incorporated herein by reference).
4.2* Restated By-Laws of the Registrant (filed as Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1, File No.
333-1328, and incorporated herein by reference).
4.3 SIPEX Corporation 2000 Non-Qualified Stock Option Plan.
4.4 Form of Non-Qualified Stock Option Agreement (Plan).
4.5 Form of Non-Qualified Stock Option Agreement (Non-Plan).
4.6 Non-Qualified Stock Option Agreement dated January 16, 2001 by
and between the Registrant and Bruce Diamond.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained in its
opinion as Exhibit 5.1).
23.2 Consent of KPMG, LLP.
23.3 Consent of Sallmann, Yang & Alameda.
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement).
*Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-1, No. 333-1328
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; and
6
-6-
(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 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 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.
(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) of the
Securities Exchange Act of 1934 (and, where applicable,
each filing of any 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.
7
-7-
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 Billerica, the Commonwealth of Massachusetts, on this
24th day of May, 2001.
SIPEX CORPORATION
By: /s/ James E. Donegan
------------------------------------
James E. Donegan
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
EACH SUCH PERSON WHOSE SIGNATURE appears below constitutes and
appoints, jointly and severally, James E. Donegan and Frank R. DiPietro and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with the power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 (including post-effective
amendments) and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact, or his or her
substitute or substitutes, may 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 by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/ James E. Donegan Chairman of the Board of Directors, Chief May 24, 2001
-------------------------------------- Executive Officer and Director
James E. Donegan
/s/ Frank R. DiPietro Executive Vice President, Finance, Chief May 24, 2001
-------------------------------------- Financial Officer, Treasurer (principal
Frank R. DiPietro financial officer and accounting officer)
and Clerk
/s/ Manfred Loeb Director May 24, 2001
--------------------------------------
Manfred Loeb
/s/ Lionel H. Olmer Director May 24, 2001
--------------------------------------
Lionel H. Olmer
/s/ John L. Sprague Director May 24, 2001
--------------------------------------
John L. Sprague
/s/ Doug McBunnie Director May 24, 2001
--------------------------------------
Doug McBurnie
/s/ Willy Sansen Director May 24, 2001
--------------------------------------
Willy Sansen
8
-8-
Exhibit Description of Exhibit
4.1* Restated Articles of Organization of the Registrant.
4.2* Restated By-Laws of the Registrant.
4.3 SIPEX Corporation 2000 Non-Qualified Stock Option
Plan.
4.4 Form of Non-Qualified Stock Option Agreement (Plan).
4.5 Form of Non-Qualified Stock Option Agreement
(Non-Plan).
4.6 Non-Qualified Stock Option Agreement dated January 16,
2001 by and between the Registrant and Bruce Diamond.
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of Testa, Hurwitz & Thibeault, LLP (contained
in its opinion as Exhibit 5.1).
23.2 Consent of KPMG, LLP.
23.3 Consent of Sallmann, Yang & Alameda.
24.1 Power of Attorney (included as part of the signature
page of this Registration Statement).
*Incorporated by reference to Exhibits to the Registrant's Registration
Statement on Form S-1, No. 333-1328