AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 2001
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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 NUMBER)
22 LINNELL CIRCLE
BILLERICA, MA 01821
(978) 667-8700
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
2002 NONSTATUTORY 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:
JEFFREY D. SAPER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
AGGREGATE PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION FEE
BE REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE (4)
------------- -------------- --------- -------------- ---
2002 NONSTATUTORY STOCK OPTION PLAN
Common Stock, par value $.01 per share 771,700 $ 6.00 (2) $ 4,630,200.00 (2) $ 1,157.55 (2)
228,300 $ 9.20 (3) $ 2,100,360.00 (3) $ 525.09 (3)
NON-PLAN OPTIONS
Common Stock, par value $.01 per share 30,000 $ 12.1400 (2) $ 364,200.00 (2) $ 91.05 (2)
--------- ------- -------------- ----------
TOTAL 1,030,000 $ 7,094,760.00 $ 1,773.69
========= ============== ==========
(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 $9.20 per share, is the average of the high and low prices of
the Common Stock as reported on The Nasdaq National Market on November 19,
2001 and is set forth solely for purposes of calculating the filing fee for
those shares without a fixed exercise price.
(4) Amount of Registration Fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which states that the fee shall be "$250 per $1
million" of the maximum aggregate price at which such securities are
proposed to be offered. The Registration Fee is therefore calculated by
multiplying the aggregate offering sales amount by 0.000250.
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 2001 Annual Report on Form 10-K, filed with the
Commission on March 23, 2001;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 29, 2001;
(e) 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
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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.
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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1* Restated Articles of Organization of the Registrant.
4.2* Restated By-Laws of the Registrant.
4.3 SIPEX Corporation 2002 Nonstatutory Stock Option Plan.
4.4 Form of Stock Option Agreement (Plan).
4.5 Form of Stock Option Agreement (Non-Plan) by and between the Registrant and Ravi Nandan.
4.6 Form of Stock Option Agreement (Non-Plan) by and between the Registrant and Eva Ferguson.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of
securities being registered.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in 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
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(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.
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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 Billerica, the Commonwealth of Massachusetts, on this
20th day of November, 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 November 20, 2001
--------------------------------------------- Executive Officer and Director
James E. Donegan
/s/ Frank R. DiPietro Executive Vice President, Finance, Chief November 20, 2001
--------------------------------------------- Financial Officer, Treasurer (principal
Frank R. DiPietro financial officer and accounting officer) and
Clerk
/s/ Manfred Loeb Director November 20, 2001
---------------------------------------------
Manfred Loeb
/s/ Lionel H. Olmer Director November 20, 2001
---------------------------------------------
Lionel H. Olmer
/s/ John L. Sprague Director November 20, 2001
---------------------------------------------
John L. Sprague
--------------------------------------------- Director
Doug McBurnie
/s/ Willy Sansen Director November 20, 2001
---------------------------------------------
Willy Sansen
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
REGISTRATION STATEMENT ON FORM S-8
SIPEX CORPORATION
NOVEMBER 21, 2001
INDEX TO EXHIBITS
Exhibit Number Description of Exhibit
4.1* Restated Articles of Organization of the Registrant.
4.2* Restated By-Laws of the Registrant.
4.3 SIPEX Corporation 2002 Nonstatutory Stock Option Plan.
4.4 Form of Stock Option Agreement (Plan).
4.5 Form of Stock Option Agreement (Non-Plan) by and
between the Registrant and Ravi Nandan.
4.6 Form of Stock Option Agreement (Non-Plan) by and
between the Registrant and Eva Ferguson.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered.
23.1 Consent of Wilson Sonsini Goodrich and Rosati,
Professional Corporation (included in 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.