As filed with the Securities and
Exchange Commission on November 19, 2001
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
S T A K E T E C H N O L O G Y L T D.
------------------------------------
(Exact name of registrant as specified in its charter)
Canada None
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2838 Highway 7
Norval, Ontario, Canada L0P 1KO
- --------------------------------------- -------------
(Address of Principal Executive Offices (Postal Code)
2001 STOCK OPTION PLAN
----------------------
(Full title of the plan)
STEVEN BROMLEY
Chief Financial Officer
Stake Technology Ltd.
2838 Highway 7,
Norval, Ontario, Canada L0P 1KO
----------
(Name and address of agent for service)
Telephone number, including area code, of agent for service
(905) 455-1990
Copy to:
ROBERT T. LINCOLN
Dunnington, Bartholow & Miller LLP
666 Third Avenue
New York, NY 10017
- --------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
Securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price registration fee
- --------------------------------------------------------------------------------------------
Common
Shares, without 1,000,000 shares $1.74 $1,740,000 US $435.00 US
par value (A) U.S. per share (B)
(B)
- --------------------------------------------------------------------------------------------
(A) The aggregate number of shares subject to the Stake 2001 Stock Option
Plan. There are also to be registered, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "Act"), such additional shares as
may become issuable under the Plan through the operation of applicable
anti-dilution provisions.
(B) Computed in accordance with Rules 457 (c) and 457 (h) (1) under the Act
solely for purposes of calculating the registration fee; based on the
average of the bid and asked price of the shares as quoted on the Nasdaq
SmallCap Market on November 14, 2001, a date within five (5) days prior to
the date of filing of this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registration Information and Employee Plan Annual Information*
* The documents containing the information specified in Part I of Form S-8 will
be sent or given to participating employees as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"). Such documents
are not required to be and are not filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement on
Form S-8 (the "Registration Statement"), or as a prospectus or prospectus
supplement pursuant to Rule 424. 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.
CROSS REFERENCE SHEET
Between Items of Form S-3 and Prospectus Pursuant to Rule 501(b) of Regulation
S-K
Item and Heading Location in Prospectus
- ---------------- ----------------------
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus ..................... Cover Page
2. Inside Front and Outside Back
Cover Pages of Prospectus .................... Inside Cover Page
3. Summary Information, Risk
Factors and Ratio of Earnings
to Fixed Charges ............................. Not applicable
4. Use of Proceeds .............................. Not applicable
5. Determination of Offering Price .............. Not applicable
6. Dilution ..................................... Not applicable
7. Selling Security Holders ..................... Cover Page,
Selling Shareholders
8. Plan of Distribution ......................... Cover Page
9. Description of Securities
to be Registered ............................. Not applicable
1
10. Interests of Named Experts
and Counsel .................................. Legal Matters, Experts
11. Material Changes ............................. Not applicable
12. Incorporation of Certain
Information by Reference ..................... Information Incorporated
by Reference
13. Disclosure of Commission
Position on Indemnification of
Securities Act Liabilities ................... Indemnification
2
REOFFER PROSPECTUS
STAKE TECHNOLOGY LTD.
1,000,000 COMMON SHARES
(without par value)
This Prospectus is being used in connection with the offering from time to time
by certain shareholders ("Selling Shareholders") of Stake Technology Ltd. (the
"Company") or their successors in interest of shares of the Common Stock
(without par value) of Stake ("Common Shares") which have been or may be
acquired upon the exercise of stock options granted to certain employees,
directors and/or consultants of the Company under the Company's 2001 Stock
Option Plan (the "Plan").
The Common Shares may be sold from time to time by the Selling Shareholders or
other eligible successors in interest. Such sales may be made on the Nasdaq
SmallCap Market or otherwise at prices and at terms then prevailing or at prices
related to the then current market price, or in negotiated transactions. The
Common Shares may be sold by one or more of the following methods: (a) a block
trade in which the broker or dealer so engaged will attempt to sell the shares
as agent but may position and resell a portion of the block as principal to
facilitate the transaction; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (c)
an exchange distribution in accordance with the rules of such exchange; and (d)
ordinary brokerage transactions and transactions in which the broker solicits
purchases. In effecting sales, brokers, or dealers engaged by a Selling
Shareholder may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from Selling Shareholders in
amounts to be negotiated immediately prior to the sale. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act") in connection with such sales. In addition, any securities covered by
this Prospectus, which qualify for sale pursuant to Rule 144, may be sold under
Rule 144 rather than pursuant to this Prospectus. The Company will not receive
any of the proceeds from the sale of these shares, although it has paid the
expenses of preparing this Prospectus and the related Registration Statement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company's Common Shares are traded on the Nasdaq SmallCap Market under the
symbol "STKL". On November 14, 2001, the closing bid price of the Common Shares
as reported by Nasdaq was US $ 1.71.
CURRENCY PRESENTATION
All dollar amounts in this Prospectus are expressed in Canadian dollars
"$". Amounts expressed in United States dollars are preceded by the symbols "US
$". On November 14, 2001, the noon buying rate for Cdn. $1.00 was U.S. $1.5916.
The date of this Prospectus is November 19, 2001.
3
TABLE OF CONTENTS
AVAILABLE INFORMATION .................................................... 5
SELLING SHAREHOLDERS ..................................................... 6
INFORMATION INCORPORATED BY REFERENCE .................................... 6
ENFORCEABILITY OF CIVIL LIABILITIES ...................................... 7
LEGAL MATTERS ............................................................ 7
EXPERTS .................................................................. 8
INDEMNIFICATION .......................................................... 8
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE INFORMATION
OR TO MAKE REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING CONTAINED HEREIN AND, IF GIVEN OR MADE ANY SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFERING OF ANY SECURITIES OTHER THAN
THOSE TO WHICH IT RELATES OR IN ANY STATE OR OTHER JURISDICTION IN, WHICH SUCH
OFFERING MAY NOT LAWFULLY BE MADE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR SINCE THE DATES AS OF WHICH INFORMATION IS SET FORTH HEREIN.
4
AVAILABLE INFORMATION
We have filed a Registration Statement on Form S-8 under the Securities Act with
respect to the Common Shares offered hereby. This Prospectus is part of the
Registration Statement and, as permitted by the Commissions rules, does not
contain all of the information set forth in the Registration Statement and the
exhibits and schedules thereto on file with the Commission pursuant to the
Securities Act and the rules and regulations of the Commission thereunder. For
further information about the Company and our Common Shares, reference is made
to the Registration Statement and the exhibits and schedules thereto. Statements
contained in this Prospectus regarding the contents of any agreement or other
document filed as an exhibit to the Registration Statement are not necessarily
complete, and in each instance reference is made to the copy of such agreement
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference. The Registration Statement,
including the exhibits and schedules thereto, can be inspected and copied at the
Commission's offices as described herein.
We are subject to the informational requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and in accordance therewith we file
annual and quarterly reports, proxy statements and other information with the
Commission. You may read and copy any of the reports, proxy statements and other
information filed by us at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Judiciary Plaza, Washington,
D.C. 20549, as well as at the Commission's Regional Offices at 7 World Trade
Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material may be obtained at prescribed rates from the Public
Reference Room of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. Information concerning the operation of the Public
Reference Room may be obtained by calling the Commission at 1-800-SEC-0330. The
Commission maintains an Internet site at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants, including the Company, that file electronically with the
Commission. Reports, proxy and information statements and other information
about us may also be inspected at the National Association of Securities
Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
We will provide without charge to each person to whom this Prospectus is
delivered, upon written or oral request of such person, a copy of any and all of
the information that has been or may be incorporated by reference in this
Prospectus, but is not delivered with this Prospectus (other than exhibits to
such information unless such exhibits are incorporated by reference in this
Prospectus).
Copies of documents (without exhibits) incorporated by reference in this
Prospectus will be provided to you without charge upon written or oral request
to the Chief Financial Officer of the Company, 2838 Highway 7, Norval, Ontario
L0P 1KO Telephone: (905) 455-1990, extension 108 or sbromley@staketech.com.
5
SELLING SHAREHOLDERS
The following table sets forth the names of the Selling Shareholders, the number
of Common Shares owned by the Selling Shareholders, the number of Common Shares
to be offered by the Selling Shareholders and the number of Common Shares the
Selling Shareholders will own after the completion of this offering:
Beneficial Ownership Beneficial Ownership
Name of Selling Prior to Offering After Offering
Shareholder Shares Percentage(2) Shares(1) Percentage
----------- ------ ------------- --------- ----------
Jeremy Kendall 660,513 (3) 1.79% 305,513 0.83%
John Taylor 296,527 (4) 0.81% 101,527 0.28%
Leslie Markow 88,050 (5) 0.24% 35,550 0.10%
Cyril Ing 123,835 (6) 0.34% 83,835 0.23%
Joseph Riz 91,100 (7) 0.25% 51,100 0.14%
James Rifenbergh 420,948 (8) 1.14% 380,948 1.03%
Tim Bergqvist 77,500 (9) 0.21% 37,500 0.10%
Camillo Lisio 10,000(10) 0.03% -0- -0-
(1) Assumes the sale of all of the Common Shares acquired by the Selling
Shareholder upon exercise of options granted under the Plan.
(2) Based on 36,827,828 Common Shares issued and outstanding as of the date
hereof.
(3) Includes 355,000 Common Shares issuable upon exercise of options granted
under the Plan.
(4) Includes 195,000 Common Shares issuable upon exercise of options granted
under the Plan.
(5) Includes 52,500 Common Shares issuable upon exercise of options granted
under the Plan.
(6) Includes 40,000 Common Shares issuable upon exercise of options granted
under the Plan.
(7) Includes 40,000 Common Shares issuable upon exercise of options granted
under the Plan.
(8) Includes 40,000 Common Shares issuable upon exercise of options granted
under the Plan.
(9) Includes 40,000 Common Shares issuable upon exercise of options granted
under the Plan.
(10) Includes 10,000 Common Shares issuable upon exercise of options granted
under the Plan.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" into this Prospectus
information we file with the SEC in other documents. This means that we can
disclose important information by referring you to other documents that we file
with the SEC. The information incorporated by reference is considered to be part
of this Prospectus, and information that we file later with the SEC will
automatically update and supercede this information. We incorporate by reference
the documents listed below and future filings we will make with the Commission
under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the offering
of these Common Shares is terminated:
(1) Our annual report on Form 10-KSB for the year ended December 31, 2000;
6
(2) Our Information Circular and Proxy Statement dated May 4, 2001 relating to
our 2001 Annual and Special Meeting of Shareholders held on June 14, 2001;
(3) Our quarterly report on Form 10-Q for the quarter ended March 31, 2001,
(4) Our quarterly report on Form 10-Q for the quarter ended June 30, 2001, and
(5) Our quarterly report on Form 10-Q for the quarter ended September 30,
2001.
A statement contained in a document incorporated by reference herein shall
be deemed to be modified or superceded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated herein modifies or replaces such statement.
Any statement that is modified or superceded shall not be deemed, except as so
modified or superceded, to constitute a part of this Prospectus.
We will provide without charge to you, upon your written or oral request, a copy
of any or all of the information incorporated by reference in this Prospectus.
Requests should be directed to:
Stake Technology Ltd.
2838 Highway
Norval, Ontario, Canada L0P 1K0
Attention: Steven Bromley, Chief Financial Officer
Telephone number (905) 455-1990
Fax number: (905) 455-2529
Email: sbromley@staketech.com
ENFORCEABILITY OF CIVIL LIABILITIES
The Company is a Canada corporation. A majority of its officers and
directors, as well as certain of the experts named herein, are residents of
Canada and a substantial portion of the assets of the Company and of such
persons are located outside the United States. As a result, it may be difficult
for investors to effect service of process within the United States upon the
Company or such persons or to enforce, in United States courts, judgments
against them obtained in such courts predicated upon the civil liability
provisions of the United States federal securities laws. The Company has been
advised by its Canadian counsel, Mann & Gahtan LLP of Toronto, Ontario, that
there is doubt as to whether Canadian courts would: (a) enforce judgments of
United States courts obtained in actions against the Company or such persons
predicated upon the civil liability provisions of the United States federal
securities laws; or (b) enforce, in original actions, liabilities against the
Company or such persons predicated solely upon the United States federal
securities laws.
LEGAL MATTERS
Messrs. Mann & Gahtan LLP, Toronto, Ontario, the Company's Canadian
counsel have passed upon the validity of the issuance of the Common Shares
offered by this prospectus.
7
EXPERTS
The financial statements and schedules in the Company's annual report on
Form 10-KSB for the fiscal year ended December 31, 2000 which are incorporated
by reference in this Prospectus and in the Registration Statement of which this
Prospectus is a part have been examined by PricewaterhouseCoopers LLP,
independent chartered accountants, to the extent and for the periods set forth
in the reports of such firm included in said annual report and are incorporated
by reference herein and in the Registration Statement of which this Prospectus
is a part in reliance upon such reports and upon the authority of such firm as
experts in accounting and auditing.
Any financial statements and schedules hereafter incorporated by reference
in this Prospectus and in the Registration Statement of which this Prospectus is
a part which have been examined and are the subject of any report by independent
chartered accountants, to the extent set forth in any such report hereafter
incorporated by reference herein and in the Registration Statement of which this
Prospectus is a part, will be so incorporated by reference in reliance upon such
report and upon the authority of such firm as experts in accounting and
auditing.
INDEMNIFICATION
Section 124 of the Canada Business Corporations Act provides, in pertinent part,
as follows:
(1) Indemnification. Except in respect of an action by or on behalf of the
corporation or body corporate to procure a judgment in its favor, a corporation
may indemnify a director or officer of the corporation, a former director or
officer of the corporation or a person who acts or acted at the corporation's
request as a director or officer of a body corporate of which the corporation 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 is made a
party by reason of being or having been a director or officer of such
corporation or body corporate, if
(a) he acted honestly and in good faith with a view to the best
interests of the corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was lawful.
(2) Indemnification in derivative actions. A corporation may with the
approval of a court indemnify a person referred to in subsection (1) in respect
of an action by or on behalf of the corporation or body corporate to procure a
judgment in its favor, to which he is made a party by reason of being or having
been a director or an officer of the corporation or body corporate, against all
costs, charges and expenses reasonably incurred by him in connection with such
action if he fulfills the conditions set out in paragraphs (1)(a) and (b).
(3) Indemnity as of right. Notwithstanding anything in this section, a
person referred
8
to in subsection (1) is entitled to indemnity from the corporation in respect of
all costs, charges and expenses reasonably incurred by him in connection with
the defence of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of being or having been a director or officer
of the corporation or body corporate, if the person seeking indemnity
(a) was substantially successful on the merits in his defence of the
action or proceeding, and
(b) fulfills the conditions set out in paragraphs (1)(a) and (b).
(4) Directors' and officers' insurance. A corporation may purchase and
maintain insurance for the benefit of any person referred to in subsection (1)
against any liability incurred by him
(a) in his capacity as a director or officer of the corporation,
except where the liability relates to his failure to act honestly
and in good faith with a view to the best interests of the
corporation; or
(b) in his capacity as a director or officer of another body
corporate where he acts or acted in that capacity at the
corporation's request, except where the liability relates to his
failure to act honestly and in good faith with a view to the best
interests of the body corporate.
Pursuant to its By-Laws, the Company shall indemnify any person, and his heirs
and legal representatives who is or was a director or officer of the Company, or
who acts or acted at the request of the Company as a director or officer of a
body corporate of which the Company is or was a shareholder or creditor, against
any liability and all costs, charges and expenses, including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by such person in
respect of any civil, criminal or administrative action or proceeding to which
such person is made a party by reason of being or having been a director or
officer of the Company or such body corporate, if such person acted honestly and
in good faith with a view to the best interests of the Company, and, in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, such person had reasonable grounds for believing that his
conduct was lawful. No director or officer of the Company shall be indemnified
by the Company in respect of any liability, costs, charges or expenses that such
person sustains or incurs in or about any action, suit or other proceeding as a
result of which he is adjudged to be in breach of any duty or responsibility
imposed upon him under the CBCA or under any other statute unless, in an action
brought against them in their capacity as director or officer, they have
achieved complete or substantial success as a defendant. Subject to the
limitations contained in the CBCA, the Company may purchase, maintain or
participate in such insurance for the benefit of such persons as the board of
directors may, from time to time, determine.
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the United States
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is therefore unenforceable. The Company is subject,
insofar as its Articles of Amalgamation and internal affairs are concerned, to
the laws of Canada, and it has
9
been advised by its Canadian lawyers, Messrs. Mann & Gahtan LLP, that, in their
opinion, Canadian courts would allow indemnification for liabilities arising
under the Act, provided that the indemnification came within the limits of the
above quoted sections of the CBCA, since such provisions are not contrary to the
public policy of Canada. (See "Enforceability of Civil Liabilities.")
10
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The SEC allows us to "incorporate by reference" into this Prospectus information
we file with the SEC in other documents. This means that we can disclose
important information by referring you to other documents that we file with the
SEC. The information incorporated by reference is considered to be part of this
Prospectus, and information that we file later with the SEC will automatically
update and supercede this information. We incorporate by reference the documents
listed below and future filings we will make with the Commission under Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act until the offering of these
shares is terminated:
(1) Our annual report on Form 10-KSB for the year ended December 31, 2000;
(2) Our Information Circular and Proxy Statement dated May 4, 2001 relating to
our 2001 Annual and Special Meeting of Shareholders held on June 14, 2001;
(3) Our quarterly report on Form 10-Q for the quarter ended March 31, 2001,
(4) Our quarterly report on Form 10-Q for the quarter ended June 30, 2001, and
(5) Our quarterly report on Form 10-Q for the quarter ended September 30,
2001.
A statement contained in a document incorporated by reference herein shall
be deemed to be modified or superceded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated herein modifies or replaces such statement.
Any statement is modified or superceded shall not be deemed, except as so
modified or superceded, to constitute a part of this Prospectus.
We will provide without charge to you, upon your written or oral request, a copy
of any or all of the information incorporated by reference in this Prospectus.
Requests should be directed to:
Stake Technology Ltd.
2838 Highway
Norval, Ontario, Canada L0P 1K0
Attention: Steven Bromley, Chief Financial Officer
Telephone number (905) 455-1990
Fax number: (905) 455-2529
Email: sbromley@staketech.com
Item 4. Description of Securities
Not applicable
Item 5. Interests of Named Experts and Counsel
Messrs. Mann & Gahtan LLP of Toronto, Ontario, Canada, the Company's
Canadian
II-1
lawyers has passed upon the legality of the securities offered. As of the date
of this Prospectus, lawyers who are members of or are employed by Messrs. Mann &
Gahtan LLP and participating in matters on behalf of the Company relating to
this Registration Statement, do not beneficially own any shares of the Company's
Common Shares.
Item 6. Indemnification of Directors and Officers
Section 124 of the Canada Business Corporations Act provides, in pertinent
part, as follows:
(1) Indemnification. Except in respect of an action by or on behalf of the
corporation or body corporate to procure a judgment in its favor, a corporation
may indemnify a director or officer of the corporation, a former director or
officer of the corporation or a person who acts or acted at the corporation's
request as a director or officer of a body corporate of which the corporation 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 is made a
party by reason of being or having been a director or officer of such
corporation or body corporate, if
(a) he acted honestly and in good faith with a view to the best
interests of the corporation; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had
reasonable grounds for believing that his conduct was lawful.
(2) Indemnification in derivative actions. A corporation may with the
approval of a court indemnify a person referred to in subsection (1) in respect
of an action by or on behalf of the corporation or body corporate to procure a
judgment in its favor, to which he is made a party by reason of being or having
been a director or an officer of the corporation or body corporate, against all
costs, charges and expenses reasonably incurred by him in connection with such
action if he fulfills the conditions set out in paragraphs (1)(a) and (b).
(3) Indemnity as of right. Notwithstanding anything in this section, a
person referred to in subsection (1) is entitled to indemnity from the
corporation in respect of all costs, charges and expenses reasonably incurred by
him in connection with the defence of any civil, criminal or administrative
action or proceeding to which he is made a party by reason of being or having
been a director or officer of the corporation or body corporate, if the person
seeking indemnity
(a) was substantially successful on the merits in his defence of the
action or proceeding, and
(b) fulfills the conditions set out in paragraphs (1)(a) and (b).
(4) Directors' and officers' insurance. A corporation may purchase and
maintain insurance for the benefit of any person referred to in subsection (1)
against any liability incurred by him
(a) in his capacity as a director or officer of the corporation,
except where the
II-2
liability relates to his failure to act honestly and in good faith
with a view to the best interests of the corporation; or
(b) in his capacity as a director or officer of another body
corporate where he acts or acted in that capacity at the
corporation's request, except where the liability relates to his
failure to act honestly and in good faith with a view to the best
interests of the body corporate.
Pursuant to its By-Laws, the Company shall indemnify any person, and his
heirs and legal representatives who is or was a director or officer of the
Company, or who acts or acted at the request of the Company as a director or
officer of a body corporate of which the Company is or was a shareholder or
creditor, against any liability and all costs, charges and expenses, including
an amount paid to settle an action or satisfy a judgment, reasonably incurred by
such person in respect of any civil, criminal or administrative action or
proceeding to which such person is made a party by reason of being or having
been a director or officer of the Company or such body corporate, if such person
acted honestly and in good faith with a view to the best interests of the
Company, and, in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, such person had reasonable grounds for
believing that his conduct was lawful. No director or officer of the Company
shall be indemnified by the Company in respect of any liability, costs, charges
or expenses that such person sustains or incurs in or about any action, suit or
other proceeding as a result of which he is adjudged to be in breach of any duty
or responsibility imposed upon him under the CBCA or under any other statute
unless, in an action brought against them in their capacity as director or
officer, they have achieved complete or substantial success as a defendant.
Subject to the limitations contained in the CBCA, the Company may purchase,
maintain or participate in such insurance for the benefit of such persons as the
board of directors may, from time to time, determine.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the United States
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is therefore unenforceable. The Company is subject,
insofar as its Articles of Amalgamation and internal affairs are concerned, to
the laws of Canada, and it has been advised by its Canadian counsel, Messrs.
Mann & Gahtan LLP, that, in their opinion, Canadian courts would allow
indemnification for liabilities arising under the Act, provided that the
indemnification came within the limits of the above quoted sections of the CBCA,
since such provisions are not contrary to the public policy of Canada. (See
"Enforceability of Civil Liabilities.")
Item 7. Exemption from Registration Claimed
Not applicable
II-3
Item 8. Exhibits
4.1 2001 Stock Option Plan
5 Opinion of Mann & Gahtan LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Mann & Gahtan LLP
(Contained in Exhibit 5)
24 Powers of Attorney
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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 (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 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.
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(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.
(4) 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 an 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.
(5) To deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Item 310(b) of Registration S-B is not set forth in
the prospectus, to deliver, or cause to be delivered, to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
(6) To deliver or cause to be delivered with the prospectus to each employee to
whom the prospectus is sent or given, a copy of the registrant's annual report
to stockholders for its last fiscal year, unless such employee otherwise has
received a copy of such report, in which case the registration shall state in
the prospectus that it will promptly furnish, without charge, a copy of such
report on written request of the employee. If the last fiscal year of the
registrant has ended within 120 days prior to the use of the prospectus, the
annual report of the registrant for the preceding fiscal year may be so
delivered, but within such 120-day period the annual report for the last fiscal
year will be furnished to each such employee.
(7) To transmit or cause to be transmitted to all employees participating in the
Plans who do not otherwise receive such material as stockholders of the
registrant, at the time and in the manner such material is sent to its
stockholders, copies of all reports, proxy statements and other communications
distributed to its stockholders generally.
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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, thereto duly
authorized, in the City of Norval, Province of Ontario, Canada, on this 19th day
of November, 2001.
STAKE TECHNOLOGY LTD.
By: /s/ Steven Bromley
------------------------------------
Steven Bromley
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed on November 19, 2001 by the following persons in the
capacities indicated.
Signature Title
- --------- -----
/s/Jeremy N. Kendall Chairman, Chief Executive Officer
- ----------------------------- and Director (Principal Executive
Jeremy N. Kendall Officer)
/s/John D. Taylor President, Chief Operating
- ----------------------------- Officer and Director
John D. Taylor
/s/Steven Bromley Chief Financial Officer
- ----------------------------- (Principal Financial and Accounting
Steven Bromley Officer)
* Director
- -------------------
Cyril A. Ing
* Director
- -------------------
Joseph Riz
* Director
- -------------------
Tim Bergqvist
* Director
- -------------------
Michael M. Boyd
* Director and Authorized
- ------------------- Representative in the
James K. Rifenbergh United States
* Director
- -------------------
Allan Routh
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* Director
- -------------------
Andy Anderson
* Director
- -------------------
Dennis Anderson
* Director
- -------------------
Katrina Houde
* Director
- -------------------
Camillo Lisio
* Director
- -------------------
Stephen R. Bronfman
*By her signature set forth below, Leslie N. Markow, pursuant to a duly
executed power of attorney filed with the Securities and Exchange Commission as
an exhibit to this registration statement, has signed this registration
statement on behalf of and as Attorney-in-Fact for this person.
/s/ Leslie N. Markow
----------------------------------------
Leslie N. Markow
Attorney-in-Fact
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