-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RXXxngI3nlJD1gCO9m3LiecwYGh8xAKAsNqFmhO0h1ycgaoa1qrVeOqB3kDjaJkd Ya7pCuJK1NhK2ZmCVkq7fg== 0000891020-98-001454.txt : 19981012 0000891020-98-001454.hdr.sgml : 19981012 ACCESSION NUMBER: 0000891020-98-001454 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981009 EFFECTIVENESS DATE: 19981009 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: RITCHIE BROS AUCTIONEERS INC CENTRAL INDEX KEY: 0001046102 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] STATE OF INCORPORATION: A6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-65533 FILM NUMBER: 98723745 BUSINESS ADDRESS: STREET 1: 9200 BRIDGEPORT RD STREET 2: RICHMOND, BRITISH COLUMBIA CITY: CANADA STATE: A1 ZIP: V6X 151 BUSINESS PHONE: 6042737964 S-8 1 EDGAR FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 9, 1998 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- RITCHIE BROS. AUCTIONEERS INCORPORATED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CANADA NOT APPLICABLE (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.) INCORPORATION OR ORGANIZATION) 9200 BRIDGEPORT ROAD RICHMOND, BRITISH COLUMBIA CANADA V6X 1S1 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) 1997 STOCK OPTION PLAN (FULL TITLE OF THE PLAN) LAWCO OF OREGON, INC. 1211 S.W. FIFTH AVENUE, SUITE 1500 PORTLAND, OREGON 97204 ATTN: SUSAN KIPPER (503) 727-2000 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) ---------------------- COPIES TO: DAVID S. MATHESON PERKINS COIE LLP 1211 S.W. FIFTH AVENUE, SUITE 1500 PORTLAND, OREGON 97204-3715 ---------------------- CALCULATION OF REGISTRATION FEE
========================================================================================================================== TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE SHARE(2) PRICE(2) - ---------------------------- -------------------- ------------------------- --------------------------- ------------------ Common Shares, without 1,500,000 $21.0625 $31,593,750 $9,320.16 par value ==========================================================================================================================
(1) Together with an indeterminate number of additional shares that may be necessary to adjust the number of shares reserved for issuance pursuant to the 1997 Stock Option Plan as the result of any future stock split, stock dividend or similar adjustment of the outstanding Common Shares of the Registrant. (2) Estimated pursuant to Rule 457 of the Securities Act of 1933, as amended, solely for the purpose of calculating the amount of the registration fee. The price per share is estimated to be $21.0625, based on the average of the high sales price ($21.625) and low sales price ($20.50) for the Registrant's Common Shares as reported on the New York Stock Exchange on October 5, 1998. 2 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents are hereby incorporated by reference into this Registration Statement: (a) The Registrant's Rule 424(b) Prospectus dated March 9, 1998 filed with the Securities and Exchange Commission (the "Commission") on March 10, 1998; (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 1997; and (c) The description of the Registrant's Common Shares contained in the Registration Statement on Form 8-A filed with the Commission on September 26, 1997, under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. Any document filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment that indicates that the securities offered hereby have been sold or that deregisters the securities covered hereby then remaining unsold shall also be deemed to be incorporated by reference into this Registration Statement and to be a part hereof commencing on the respective date on which such document is filed. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant is a Canadian corporation. Section 124 of the Canada Business Corporations Act, as amended, provides 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 Action. A corporation may with the approval of a court indemnify a person referred to in sub-section (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 defense 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 defense of the action or proceeding; and (b) fulfills the conditions set out in paragraphs (1)(a) and (b). II-1 3 (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. (5) Application to Court. A corporation or a person referred to in subsection (1) may apply to a court for an order approving an indemnity under this section and the court may so order and make any further order it thinks fit. (6) Notice to Director. An applicant under subsection (5) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel. (7) Other Notice. On an application under subsection (5), the court may order notice to be given to any interested person and such person is entitled to appear and be heard in person or by counsel." Sections 5 and 6 of By-Law No. 1 of the Registrant provide as follows: "5. Indemnification of Directors and Officers. The [Registrant] shall indemnify a director or officer of the [Registrant], a former director or officer of the [Registrant] or a person who acts or acted at the [Registrant's] request as a director or officer of a body corporate of which the [Registrant] is or was a shareholder or creditor, and his heirs and legal representatives to the extent permitted by the Canada Business Corporations Act. 6. Indemnity of Others. Except as otherwise required by the Canada Business Corporations Act and subject to paragraph 5, the [Registrant] may from time to time indemnify and save harmless any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the [Registrant]) by reason of the fact that he is or was an employee or agent of the [Registrant], or is or was serving at the request of the [Registrant] as a director, officer, employee, agent of or participant in another body corporate, partnership, joint venture, trust or other enterprise, against expenses (including legal fees), judgments, fines and any amount actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted honestly and in good faith with a view to the best interests of the [Registrant] and, with respect to any criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his conduct was lawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction shall not, of itself, create a presumption that the person did not act honestly and in good faith with a view to the best interests of the [Registrant] and, with respect to any criminal or administrative action or proceeding that is enforced by a monetary penalty, had no reasonable grounds for believing that his conduct was unlawful." The Registrant carries liability insurance which provides for coverage for officers and directors of the Registrant and its subsidiaries, subject to a deductible for executive indemnification. Insofar as indemnification for liabilities arising under the United States Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the United States Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. II-2 4 ITEM 8. EXHIBITS
Exhibit Number Description - --------------- ---------------------------------------------------------------------------- 4.1 Form of Common Share Certificate (1) 4.2 Articles of Amalgamation (2) 4.3 By-laws (3) 5.1 Opinion of McCarthy Tetrault regarding legality of the Common Shares being registered 23.1 Consent of KPMG 23.2 Consent of McCarthy Tetrault (included in its Opinion filed as Exhibit 5.1) 24.1 Power of Attorney (see Signature Page) 99.1 1997 Stock Option Plan, as amended (4)
(1) Incorporated herein by reference to Exhibit 4 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. (2) Incorporated herein by reference to Exhibit 3.1 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. (3) Incorporated herein by reference to Exhibit 3.2 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. (4) Incorporated herein by reference to Exhibit 10.1 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. 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; (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 thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (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) above 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 Exchange Act that are incorporated by reference in this Registration Statement. II-3 5 (2) That, for the purpose of determining any liability under the Securities 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. (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 undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 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 Securities Act 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 Commission, such indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Richmond, Province of British Columbia, on October 9, 1998. RITCHIE BROS. AUCTIONEERS INCORPORATED By /s/ C. RUSSELL CMOLIK ------------------------------------- C. Russell Cmolik President and Chief Operating Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints David E. Ritchie, C. Russell Cmolik and Peter J. Blake, and each of them, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, to sign in the name and on behalf of such person, individually and in each capacity stated below, any or all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities indicated on October 9, 1998. /s/ DAVID E. RITCHIE Chairman of the Board and Chief Executive Officer (principal - -------------------------------------- executive officer) David E. Ritchie /s/ C. RUSSELL CMOLIK Director, President and Chief Operating Officer - -------------------------------------- C. Russell Cmolik /s/ PETER J. BLAKE Director, Vice President Finance and Chief Financial Officer - -------------------------------------- (principal financial and accounting officer) Peter J. Blake /s/ CHARLES E. KROFT Director - -------------------------------------- Charles E. Kroft /s/ GEORGE EDWARD MOUL Director - -------------------------------------- George Edward Moul /s/ KENNETH D. ASBURY Authorized Representative in the United States - -------------------------------------- Kenneth D. Asbury
II-5 7 INDEX TO EXHIBITS
Exhibit Number Description - ----------------- --------------------------------------------------------------------------- 4.1 Form of Common Share Certificate (1) 4.2 Articles of Amalgamation (2) 4.3 By-laws (3) 5.1 Opinion of McCarthy Tetrault regarding legality of the Common Shares being registered 23.1 Consent of KPMG 23.2 Consent of McCarthy Tetrault (included in its Opinion filed as Exhibit 5.1) 24.1 Power of Attorney (see Signature Page) 99.1 1997 Stock Option Plan, as amended (4)
- ---------- (1) Incorporated herein by reference to Exhibit 4 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. (2) Incorporated herein by reference to Exhibit 3.1 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. (3) Incorporated herein by reference to Exhibit 3.2 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. (4) Incorporated herein by reference to Exhibit 10.1 to the Registration Statement on Form F-1 filed with the Securities Exchange Commission on September 26, 1997, as amended. EX-5.1 2 OPINION OF MCCARTHY TETRAULT 1 EXHIBIT 5.1 McCarthy Tetrault BARRISTERS & SOLICITORS o PATENT & TRADE MARK AGENTS P.O. BOX 10424, PACIFIC CENTRE SUITE 1300, 777 DUNSMUIR STREET VANCOUVER, B.C., CANADA V7Y 1K2 FACSIMILE (604) 643-7900 TELEPHONE (604) 643-7100 October 8, 1998 Ritchie Bros. Auctioneers Incorporated 9200 Bridgeport Road Richmond, B.C. V6X 1S1 CANADA Re: Registration Statement on Form S-8 of Common Shares, Without Par Value, of Ritchie Bros. Auctioneers Incorporated (the "Company") Ladies and Gentlemen: We have acted as Canadian counsel to the Company in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") under the United States Securities Act of 1933, as amended (the "Act"), which the Company is filing with the Securities and Exchange Commission with respect to 1,500,000 Common Shares, without par value (the "Shares"), which may be issued pursuant to the Ritchie Bros. Auctioneers Incorporated 1997 Stock Option Plan, as amended (the "Plan"). We have examined the Registration Statement and such resolutions, documents and records of the Company and other documents as we have deemed necessary for the purpose of this opinion. In giving this opinion, we are assuming the authenticity of all instruments presented to us as originals, the conformity with originals of all instruments presented to us as copies and the genuineness of all signatures. Based upon and subject to the foregoing, we are of the opinion that the Shares that may be issued pursuant to the Plan have been duly authorized and that, upon the due exercise of stock options in accordance with the terms of the Plan, the due execution by the Company and the registration by the Company's registrar of such Shares and the receipt by the Company of the exercise price under such options for the Shares in accordance with the terms of the Plan, such Shares will be validly issued, fully paid and nonassessable. In rendering this opinion, we express no opinion as to the laws of any jurisdiction other than the laws of Canada and the laws of the Province of British Columbia. The opinions expressed herein are provided exclusively for the benefit of the Company and may not be relied upon by any other persons without our express written consent. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act. Very truly yours, /s/ McCarthy Tetrault McCARTHY TETRAULT EX-23.1 3 CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS As independent chartered accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 30, 1998, included in Ritchie Bros. Auctioneers Incorporated's Rule 424(b) Prospectus dated March 9, 1998, and to all references to our firm included in this Registration Statement. /s/ KPMG LLP, Chartered Accountants Richmond, Canada October 8, 1998 -----END PRIVACY-ENHANCED MESSAGE-----