As filed with the Securities and Exchange Commission on
July 3, 1996
Registration No. 33
- - ____________
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
OM GROUP, INC.
(exact name of registrant as specified in its charter)
Delaware
52-1736882
(State or other jurisdiction of (I.R.S.,
Employer
incorporation or organization) Identification
Number)
3800 Terminal Tower
Cleveland, Ohio
44113-2204
(Address of principal executive offices) (Zip
code)
OMG AMERICAS, INC.
Employees' Profit-Sharing Plan
(Full title of the plan)
Michael J. Scott
Secretary
3800 Terminal Tower
Cleveland, Ohio 44113-2204
(Name and address of agent for service)
(216)781-0083
(Telephone number, including area code, of agent for
service)
Calculation of Registration Fee
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- -----------
| Title of | Amount | Proposed | Maximum |
Amount of |
| Securities | to be | Maximum | Aggregate |
Registration|
| to be | Registered |Offering Price | Offering |
Fee (2) |
| Registered | | Per Share (1) | Price (1) |
|
- -----------------------------------------------------------------
- -----------|
| Common Stock | 250,000 | $38 3/4 | $9,687,500.00 |
$3,340.00 |
|$.01 par value | | | |
|
- -----------------------------------------------------------------
- -----------
(1) Based on the average high and low prices of securities of
the same class
on the NASDAQ Stock Market on June 28, 1996.
(2) Computed in accordance with Rule 457(h) under the Securities
Act of 1933.
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Part II Information Required In The Registration Statement
Item 3 Incorporation of Documents by Reference
OM Group, Inc. (the "Company") incorporates by
reference into
this registration statement the following documents:
a) The Company's Annual Report on Form 10-K for the
year ended
December 31, 1995.
b) The Company's Quarterly Report on Form 10-Q for
the period
ended March 31, 1996.
c) The description of the Company's Common Stock,
$.01 par value,
contained in the Company's Form S-1 Registration
Statement
(Registration No. 33-60444) which became
effective on October
12, 1993 (the "Form S-1 Registration Statement").
d) OMG Americas, Inc. Profit Sharing Plan on Form
11-K for the
year ended December 31, 1995.
All documents subsequently filed by the Company
pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act
of 1934 (the "Exchange Act"), prior to the filing of
a post-
effective amendment that indicates all securities
offered have
been sold, or that deregisters all securities then
remaining
unsold, shall be deemed to be incorporated by
reference in this
registration statement and to be 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.
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Item 6 Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the
State of
Delaware ("Delaware Law") empowers a Delaware
corporation to
indemnify any persons who are, or are threatened to
be made,
parties to any threatened, pending or completed
legal action, suit
or proceeding, whether civil, criminal,
administrative or
investigative (other than an action by or in the
right of such
corporation), by reason of the fact that such person
is or was an
officer or director of such corporation, or is or
was serving at
the request of such corporation as a director,
officer, employee
or agent of another corporation or enterprise. The
indemnity may
include expenses (including attorney fees),
judgments, fines and
amounts paid in settlement actually and reasonably
incurred by
such person in connection with such action, suit or
proceeding,
provided that such officer or director acted in good
faith and in
a manner he reasonably believed to be in or not
opposed to the
corporation's best interests and, for criminal
proceedings, had no
reasonable cause to believe his conduct was illegal.
A Delaware
corporation may indemnify officers and directors in
an action by
or in the right of the corporation under the same
conditions,
except that no indemnification is permitted without
judicial
approval if the officer or director is adjudged to
be liable to
the corporation in the performance of his duty.
Where an officer
or director is successful on the merits or otherwise
in the
defense of any action referred to above, the
corporation must
indemnify him against expenses that such officer or
director
actually and reasonably incurred.
In accordance with Delaware Law, Article Eighth of
the Company's
Restated Certificate of Incorporation contains a
provision
limiting the personal liability of the Company's
directors for
violations of their fiduciary duty. Such provision
states that no
director of the Company will be personally liable to
the Company
or its stockholders for monetary damages for breach
of fiduciary
duty as director except for liability (i) for any
breach of the
director's duty of loyalty to the Company or its
stockholders,
(ii) for acts or omissions not in good faith or that
involve
intentional misconduct or knowing violation of law,
(iii) for a
violation of Section 174 of the Delaware Law or (iv)
for a
transaction from which the director derived an
improper personal
benefit.
Article Seventh of the Company's Restated
Certificate of
Incorporation and Article VII of the Company's
By-Laws provide for
indemnification of the Company's officers and
directors to the
fullest extent permitted by applicable law.
The Company maintains insurance policies that insure
the Company's
directors and officers against certain liabilities
which might be
incurred by reason of their positions as directors
and officers.
Item 7 Exemption from Registration Claimed
Not applicable.
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Item 8 Exhibits
(4)(a) Amended and Restated Certificate of
Incorporation of the
Company (reference is made to Exhibit (3.1)
of the
Company's Form S-1 Registration Statement,
which exhibit
is incorporated herein by reference).
(4)(b) Credit Agreement dated as of July 6, 1995
between the
Company as Borrower and National City Bank
as Agent for
certain Banks and the associated guarantee
of Mooney
Chemicals, Inc. (reference is made to
Exhibit (4.2) of the
Company's Form 10-K, which Exhibit is
incorporated herein
by reference).
(4)(c) Note Purchase Agreement dated as of August
30, 1995
between the Company and The Mutual Life
Insurance Company
of New York, Nationwide Life Insurance
Company and
Great-West Life and Annuity Insurance
Company,
respectively, and the associated guaranty of
Mooney Chemicals, Inc. (reference is made to
Exhibit
(10.40) of the Company's Form 10-K, which
Exhibit is
incorporated herein by reference).
(5) Opinion of Squire, Sanders & Dempsey as to
the legality of
the securities registered.
(15) Letter from Ernst & Young LLP regarding
unaudited interim
financial information.
(23)(a) Consent of Ernst & Young LLP.
(23)(b) Consent of Squire, Sanders & Dempsey
(contained as opinion
filed as Exhibit (5)).
(24) Powers of Attorney.
(99) OMG Americas, Inc. Employees' Profit-Sharing
Plan (the
"Plan").
Item 9 Undertakings
(a) The Company hereby undertakes:
(1) To file, during any period in which offers
and 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;
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(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 that
remain unsold at the termination of the
offering.
(b) The Company hereby undertakes that, for
purposes of
determining any liability under the Act, each
filing of its
annual report pursuant to section 13(a) or
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
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
Act may be permitted to directors, officers
and controlling
persons of the Company, the Company 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 Company of expenses
incurred or paid
by a director, officer or controlling person
of the Company
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
Company 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.
(d) The Company hereby undertakes that it had
submitted the Plan
and any amendment thereto to the Internal
Revenue Service
("IRS") in a timely manner and has made 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 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 Cleveland, State of Ohio, on the
third day of
July, 1996.
OM GROUP, INC.
/ s / James P. Mooney
----------------------------
James P. Mooney
Chairman of the Board 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 and on
the dates indicated.
Signature Title
Date
- --------- -----
- -----
/ s / James P. Mooney Chairman of the Board, Chief Executive
July 3, 1996
- ---------------------- Officer and Director
James P. Mooney
/ s / James M. Materna Chief Financial Officer
July 3, 1996
- ----------------------
James M. Materna
/ s / Eugene Bak Director
July 3, 1996
- ----------------------
Eugene Bak
/ s / Lee R. Brodeur Director
July 3, 1996
- -----------------------
Lee R. Brodeur
/ s / William M. LeSuer Director
July 3, 1996
- -----------------------
William M. LeSuer
/ s / Thomas R. Miklich Director
July 3, 1996
- -----------------------
Thomas R. Miklich
/ s / John E. Mooney Director
July 3, 1996
- ------------------------
John E. Mooney
/ s / Markku Toivanen Director
July 3, 1996
- -------------------------
Markku Toivanen
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Exhibit Index
Page in
Registration
Statement
- ------------
(4)(a)* Amendment and Restated Certificate of Incorporation
of the Company.
(4)(b)* Amended and Restated By-Laws of the Company.
(4)(c)* Form of Common Stock Certificate.
(4)(d)* Credit Agreement dated as of December 17, 1991 among
the Company as Borrower and National City Bank as Agent
for certain Banks and the associated guarantee of
Mooney Chemicals, Inc.
(4)(e)* Note Purchase Agreement dated as of August 30, 1995
between the Company and The Mutual Life Insurance
Company of New York, Nationwide Life Insurance Company
and Great-West Life and Annuity Insurance Company,
respectively, and the associated guaranty of Mooney
Chemicals, Inc.
(5) Opinion of Squire, Sanders & Dempsey as to the
legality 8
of the securities registered.
(15) Letter from Ernst & Young LLP regarding unaudited
9
interim financial information.
(23)(a) Consent of Ernst & Young LLP.
10
(23)(b) Consent of Squire, Sanders & Dempsey (contained in
Exhibit 5).
(24) Powers of Attorney.
11
(99) OMG Americas, Inc. Employees' Profit-Sharing Plan.
* Incorporated herein by reference; see Item 8
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Exhibit (5)
July 3, 1996
OM Group, Inc.
3800 Terminal Tower
Cleveland, Ohio 44113-2204
Re: Registration Statement on Form S-8
Gentlemen:
Reference is made to your Registration Statement on Form S-8
filed with
Securities and Exchange Commission on July 3, 1996 with respect
to 250,000
shares of common stock, $.01 par value ("Common Stock"), of OM
Group, Inc. to
be offered pursuant to OMG Americas, Inc. Employees'
Profit-Sharing Plan (the
"Plan"). We are familiar with the Plan, and we have examined
such documents
and certificates and considered such matters of law as we deemed
necessary for
the purpose of this opinion.
Based upon the foregoing, we are of the opinion that the Common
Stock to be
offered pursuant to the Plan, when issued in accordance with the
provisions of
the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the
Registration Statement.
Respectfully
submitted,
/ s / Squire,
Sanders & Dempsey
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-8-
Exhibit (15)
Acknowledgment of Independent
Accountants
Stockholders and Board of Directors
OM Group, Inc.
We are aware of the incorporation by reference in the
Registration statement
(Form S-8) pertaining to the OMG Americas, Inc. Employees'
Profit-Sharing Plan
for the registration of 250,000 shares of its common stock of
our report dated
May 9, 1996, relating to the unaudited condensed consolidated
interim
financial statements of OM Group, Inc. which is included in its
Form 10-Q for
the quarter ended March 31, 1996.
Pursuant to Rule 436(c) under the Securities Act of 1933 our
report is not
part of the registration statement prepared or certified by
accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
/ s /
Ernst & Young LLP
- ------------------------
Cleveland, Ohio
June 28, 1996
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Exhibit (23)(a) - Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration
Statement
(Form S-8) pertaining to the OMG Americas, Inc. Employees'
Profit Sharing Plan
for the registration of 250,000 shares of common stock of our
reports (a)
dated January 30, 1996, with respect to the consolidated
financial statements
of OM Group, Inc. included in its Annual Report (Form 10-K) and
(b) dated May
23, 1996, with respect to the financial statements of the OMG
Americas, Inc.
Employees' Profit Sharing Plan included in the Plan's Annual
Report (Form
11-K), both for the year ended December 31, 1995, filed with the
Securities
and Exchange Commission.
/ s /
Ernst & Young, LLP
------------------------
Cleveland, Ohio
June 28, 1996
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Exhibit (24)
OMG Americas, Inc.
Employees' Profit-Sharing Plan
Registration Statement
Power of Attorney and Directors
The undersigned, a director or officer of the OM Group, Inc., a
Delaware
corporation (the "Company"), which anticipates filing with the
Securities and
Exchange Commission (the "Commission") under the provisions of
the Securities
Act of 1933 (the "Act") a Registration Statement on Form S-8
(together with
any and all subsequent amendments, including post-effective
amendments, the
"Registration Statement") for purposes of registering 250,000
shares of Common
Stock with $.01 par value of the Company, to be offered pursuant
to the OMG
Americas, Inc. Employees' Profit Sharing Plan, does hereby
constitute and
appoint James P. Mooney, James M. Materna or Michael J. Scott
and any one of
them with full power of substitution and resubstitution, as
attorney or
attorneys to execute and file on behalf of the undersigned, in
his capacity as
a director or officer of the Company, the Registration Statement
and any and
all applications or other documents to be filed with the
Commission pertaining
to the Registration Statement or registration contemplated
thereby, with full
power and authority to do and perform any and all acts and
things whatsoever
required or necessary to be done in the premises, as fully as to
all intents
and purposes as he could do if personally present, hereby
ratifying and
approving the acts of said attorneys and any of them in any such
substitution.
Executed at Naples, Florida, this 6th day of February, 1996.
/s/ James P.
Mooney
- ----------------------
/s/ Eugene
Bak
- ----------------------
/s/ Lee R.
Brodeur
- ----------------------
/s/ William
M. LeSuer
- ----------------------
/s/ Thomas
R. Miklich
- ----------------------
/s/ John E.
Mooney
- ----------------------
/s/ Markku
Toivanen
- ----------------------
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