As filed with the Securities and Exchange Commission on April 27, 2001.
Subject to amendment.
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BRACKNELL CORPORATION
(Exact name of registrant as specified in its charter)
ONTARIO Not Applicable
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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121 South Eighth Street
Suite 1100
Minneapolis, Minnesota 55402
(Address of principal executive offices)
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BRACKNELL CORPORATION
EMPLOYEE SHARE PURCHASE PLAN
(Full title of the plan)
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John A. Witham
Executive Vice President and Chief Financial Officer
Bracknell Corporation
121 South Eighth Street
Suite 1100
Minneapolis, Minnesota 55402
(612) 604-0101
(Name, address and telephone number,
including area code, of agent for service)
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Copy to:
Robert A. Ouimette, Esq.
Torys
237 Park Avenue
New York, New York 10017
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2
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to offering aggregate registration
be registered be registered(1) price per share(2) offering price(3) fee(3)
- ------------- ---------------- ------------------ ----------------- ------------
Common Shares 5,000,000 shares $4.28125 $21,406,250 $5,352
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(1) Plus such indeterminate number of Common Shares of the Registrant as
may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the
Securities Act of 1933.
(2) Estimated solely for purposes of calculating the registration fee on
the basis of the average of the reported high and low sales price of
the Common Shares on April 24, 2001, as reported on The NASDAQ National
Market.
(3) Computed in accordance with Rule 457(h)(1) under the Securities Act of
1933.
3
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
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Not filed as part of this Registration Statement pursuant to the Note
to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
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Not filed as part of this Registration Statement pursuant to the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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There are hereby incorporated by reference in this Registration
Statement the following documents and information filed with the Securities and
Exchange Commission:
(a) The Corporation's Quarterly Report on Form 10-Q for the period
ended January 31, 2001.
(b) The Corporation's Annual Report on Form 10-K for the fiscal
year ended October 31, 2000.
(c) The Corporation's Proxy Statement dated February 20, 2001.
(d) The Corporation's Current Report on Form 8-K dated January 8,
2001.
(e) The description of the Corporation's Common Shares contained
in the Corporation's registration statement on Form 8-A dated
December 12, 2000, as filed with the Commission pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Corporation pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
4
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under the Business Corporations Act (Ontario), the Corporation may
indemnify a director or officer, a former director or officer 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
or her heirs and legal representatives (an "indemnifiable person"), against all
costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him or her in respect of any civil,
criminal or administrative action or proceeding to which he or she is made a
party by reason of being or having been a director or officer of the Corporation
or body corporate, if: (1) he or she acted honestly and in good faith with a
view to the best interests of the corporation, and (2) in the case of a criminal
or administrative action or proceeding that is enforced by a monetary penalty,
he or she had reasonable grounds for believing that his or her conduct was
lawful. The Corporation's by-laws provide for this indemnification.
Under the Business Corporations Act (Ontario), a corporation may also,
with the approval of the court, indemnify an indemnifiable person in respect of
an action by or on behalf of the corporation or body corporate to procure a
judgment in its favor, to which the person 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 the person in
connection with such action if he or she fulfills the conditions set out in
clauses (1) and (2) above. In any event, an indemnifiable person is entitled to
indemnity from the corporation in respect of all costs, charges and expenses
reasonably incurred by him or her in connection with the defense of any civil,
criminal or administrative action or proceeding to which he or she is made a
party by reason of being or having been a director or officer of the corporation
or body corporate, if the indemnifiable person was substantially successful on
the merits in his or her defense of the action or proceeding and fulfills the
conditions set out in clauses (1) and (2) above. Nothing in the Corporation's
articles or by-laws limits the right of any person entitled to indemnification
to claim indemnification apart from the provisions of the Corporation's by-laws
to the extent permitted by Ontario law or Canadian law.
The Corporation has purchased and maintains a policy of insurance for
the benefit of the directors and officers of the Corporation as permitted by
subsection 136(4) of the Business Corporations Act (Ontario). Such policy
insures directors and officers or, in circumstances where the Corporation's
indemnification of directors and officers is available, the Corporation against
certain liabilities incurred by the directors and officers in their capacity as
directors and officers of the Corporation, except where such liability relates
to the failure by a director or officer to act honestly and in good faith with a
view to the best interests of the Corporation.
5
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Corporation pursuant to the foregoing provisions, the Corporation has been
informed that in the opinion of the U.S. Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings.
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The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(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 this Registration
Statement (or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) 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;
provided, however, that paragraphs (1)(i) and (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 this
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; and
(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.
6
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 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.
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
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 Toronto, Ontario on the 25th day of April, 2001.
BRACKNELL CORPORATION
By: /s/ Paul D. Melnuk
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Name: Paul D. Melnuk
Title: President, Chief Executive
Officer and Director
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoints Paul D. Melnuk, John A. Witham and James A. Beukelman as
attorneys-in-fact with full power of substitution, severally, to execute in the
name and on behalf of the Registrant and each such person, individually and in
each capacity stated below, one or more post-effective amendments to this
Registration Statement as the attorney-in-fact acting in the premises deems
appropriate and to file any such amendment to this Registration Statement with
the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gilbert S. Bennett Chairman April 25, 2001
- ---------------------------------
Gilbert S. Bennett
/s/ Paul D. Melnuk President, Chief Executive April 25, 2001
- --------------------------------- Officer and Director (Principal
Paul D. Melnuk Executive Officer)
/s/ John A. Witham Executive Vice President and April 25, 2001
- --------------------------------- Chief Financial Officer
John A. Witham (Principal Financial Officer)
8
/s/ James A. Beukelman Vice President and Corporate April 25, 2001
- --------------------------------- Controller (Principal
James A. Beukelman Accounting Officer)
/s/ Jean-Rene Halde Director April 25, 2001
- ---------------------------------
Jean-Rene Halde
/s/ Michael D. Hanna Director April 25, 2001
- ---------------------------------
Michael D. Hanna
/s/ Wade C. Lau Director April 25, 2001
- ---------------------------------
Wade C. Lau
/s/ James W. Moir, Jr. Director April 25, 2001
- ---------------------------------
James W. Moir, Jr.
/s/ Thomas P. Muir Director April 25, 2001
- ---------------------------------
Thomas P. Muir
/s/ Gregory J. Orman Director April 25, 2001
- ---------------------------------
Gregory J. Orman
/s/ Allan R. Twa Director April 25, 2001
- ---------------------------------
Allan R. Twa
9
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the undersigned, the
Registrant's authorized representative in the United States, on this 25th day of
April, 2001.
/s/ John A. Witham
---------------------------------
Authorized Representative
10
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated December 22, 2000
included in Bracknell Corporation's Form 10-K for the year ended October 31,
2000 and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
- -----------------------
Arthur Andersen LLP
Minneapolis, Minnesota,
April 20, 2001
11
INDEX TO EXHIBITS
Number Description of Exhibit
- ------ ----------------------
4 Bracknell Corporation Employee Share Purchase Plan (U.S.) (1)
23 Consent of Arthur Andersen LLP (see "Consent of Independent Public
Accountants" in the Registration Statement)
24 Power of Attorney (see "Power of Attorney" in the Registration
Statement)
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(1) Incorporated by reference to exhibits filed with the Corporation's Form 10-K
filed on March 12, 2001.