As filed with the Securities and Exchange Commission
on August 9, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Orion S.A.
(Exact Name of Registrant as Specified in its Charter)
| Grand Duchy of Luxembourg |
|
Not Applicable |
|
(State or other jurisdiction of
Incorporation or organization) |
|
(I.R.S. employer
identification no.) |
1700 City Plaza Drive, Suite 300
Spring, Texas 77389
(Address of principal executive offices, including
zip code)
Orion Engineered Carbons S.A. 2023 Omnibus
Incentive Compensation Plan
Orion Engineered Carbons S.A. 2023 Non-Employee
Director Plan
(Full title of the plans)
Corning F. Painter
Chief Executive Officer
Orion S.A.
1700 City Plaza Drive, Suite 300
Spring, Texas 77389
(281) 318-2959
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
With copies to:
David S. Huntington
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
(212) 373-3000
Indicate by check mark whether the registrant is a large accelerated
filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated
filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act. Check one:
| Large accelerated filer |
x |
Accelerated filer |
¨ |
| Non-accelerated filer |
¨ |
Smaller reporting company |
¨ |
| |
|
Emerging growth company |
¨ |
If an emerging growth company, indicate by check mark whether the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PART I
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectuses is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act, and the Note
to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plans
covered by this Registration Statement as required by Rule 428(b). Such documents are not being filed with the SEC as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
| Item 2. | Registrant Information and Employee Plan Annual Information |
The written statement required by Item 2 of Part I is included in
documents delivered to participants in the plans covered by this Registration Statement pursuant to Rule 428(b) of the Securities Act.
PART II
| Item 3. | Incorporation of Documents by Reference |
The following documents filed by Orion S.A., a société
anonyme (Public Limited Company) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office
at 6, route de Trèves, L-2633 Senningerberg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register
under registration number B 160558 (the “Registrant”) are incorporated herein by reference:
(a) The Registrant’s Annual Report on Form
10-K for the year ended December 31, 2022, filed with the Securities and Exchange Commission (the “Commission”) on February
24, 2023;
(b) The Registrant’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2023, filed with the Commission on May 4, 2023;
(c) The Registrant’s Quarterly Report on Form 10-Q for the
quarter ended June 30, 2023, filed with the Commission on August 9, 2023;
(d) The Registrant’s Current Reports on Form 8-K, filed with
the Commission on February 16,
2023, March 9, 2023,
March 9, 2023, April
25, 2023, May 1, 2023,
May 5, 2023, June
7, 2023, June 7, 2023
and June 8, 2023;
(e) The description of the Registrant’s common shares, no
par value (the “Common Shares”) contained in the Registrant’s Registration Statement on Form
F-1, filed with the Commission on July 14, 2014, File No. 333-196593, together with any amendment or report filed with the SEC updating
such description.
All documents subsequently filed by the Registrant 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 which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents; provided, however,
that documents or information deemed to have been furnished and not filed in accordance with the SEC rules shall not be deemed incorporated
by reference into this Registration Statement.
| Item 4. | Description of Securities |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
| Item 6. | Indemnification of Directors and Officers |
The Registrant is a Luxembourg joint stock corporation (société
anonyme or S.A.). The Registrant’s Articles of Association provide that its directors and officers will be indemnified to the
fullest extent permitted by Luxembourg law from and against any liabilities arising out of or in connection with their services. The right
to indemnification does not exist inter alios in the case of willful misconduct, gross negligence, reckless disregard of the duties
involved in the conduct of a manager’s office, fraud, or bad faith.
The Registrant maintains liability insurance for its directors and
officers. Such insurance is available to its directors and officers in accordance with its terms.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
The exhibits filed herewith or incorporated by reference herein are
set forth in the Exhibit Index filed as part of this Registration Statement hereof.
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. 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) under the Securities Act if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the 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 changes to such information in this Registration
Statement; provided, however, 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 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.
(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 which remain unsold at the termination of the offering.
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.
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 Securities and Exchange 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Spring, State of Texas,
United States of America, on August 9, 2023.
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Orion S.A. |
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|
|
|
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By: |
/s/ Corning
F. Painter |
|
| |
Name: |
Corning F. Painter |
|
| |
Title: |
Chief Executive Officer |
|
POWER OF ATTORNEY
The undersigned officers and directors do hereby constitute and
appoint Corning F. Painter, Jeffrey Glajch and Christian Eggert, or any of them, with full power of substitution, our true and lawful
attorneys-in-fact and agents to do any and all acts and things in our name and behalf in our capacities as directors and officers, and
to execute any and all instruments for us and in our names in the capacities indicated below, that such person may deem necessary or advisable
to enable the Registrant to comply with the Securities Act and any rules, regulations and requirements of the Securities and Exchange
Commission in connection with this Registration Statement, including specifically, but not limited to, power and authority to sign for
us, or any of us, in the capacities indicated below, any and all amendments hereto (including pre-effective and post-effective amendments
or any other registration statement filed pursuant to the provisions of Rule 462(b) under the Securities Act); and we do hereby ratify
and confirm all that said attorney-in-fact and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated on August 9, 2023.
| Signature |
|
Title |
| |
|
|
| /s/
Corning F. Painter |
|
|
| Corning F. Painter |
|
Chief Executive Officer |
| |
|
|
| /s/
Jeffrey Glajch |
|
|
| Jeffrey Glajch |
|
Chief Financial Officer |
| |
|
|
| /s/
Robert Hrivnak |
|
|
| Robert Hrivnak |
|
Chief Accounting Officer |
| |
|
|
| /s/
Dan F. Smith |
|
|
| Dan F. Smith |
|
Chairman |
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|
|
| /s/
Anthony L. Davis |
|
|
| Anthony L. Davis |
|
Director |
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|
|
| /s/
Kerry A. Galvin |
|
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| Kerry A. Galvin |
|
Director |
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|
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| /s/
Paul Huck |
|
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| Paul Huck |
|
Director |
| |
|
|
| /s/
Mary Lindsey |
|
|
| Mary Lindsey |
|
Director |
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|
|
| /s/
Didier Miraton |
|
|
| Didier Miraton |
|
Director |
| |
|
|
| /s/
Yi Hyon Paik |
|
|
| Yi Hyon Paik |
|
Director |
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|
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| /s/
Hans-Dietrich Winkhaus |
|
|
| Hans-Dietrich Winkhaus |
|
Director |
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|
|
| /s/
Michel Wurth |
|
|
| Michel Wurth |
|
Director |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements
to Section 6(a) of the Securities Act of 1933, as amended, the undersigned has signed this Registration Statement solely in the capacity
of the duly authorized representative of the Registrant in the United States on August 9, 2023.
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Orion Engineered Carbons LLC |
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By: |
/s/ Corning
F. Painter |
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Name: |
Corning F. Painter |
|
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Title: |
Authorized Signatory |
|
INDEX TO EXHIBITS
EXHIBIT 5.1
| |
To the Board of Directors
of Orion S.A.
6, Route de Trèves
2633 Senningerberg
Grand Duchy of Luxembourg
R.C.S. Luxembourg B160558 |
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Luxembourg, 9 August 2023 |
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Your ref. : / |
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Our ref. : 57224/ 38856034 |
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carsten.opitz@arendt.com |
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Tel. : (352) 40 78 78-691 |
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Fax : (352) 40 78 04-749 |
ORION S.A.
- Registration Statement on Form S-8
Ladies and Gentlemen,
We are acting as Luxembourg counsel for Orion S.A.,
a société anonyme, having its registered office at 6, Route de Trèves, 2633 Senningerberg, Grand Duchy of
Luxembourg, registered with the Registre de Commerce et des Sociétés de Luxembourg under number B160558, (the “Company”)
in connection with the Registration Statement on Form S-8 including all amendments or supplements thereto (the “Registration
Statement”) filed with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended, in relation
to common shares of the Company as may be issued pursuant to the 2023 Omnibus Incentive Compensation Plan (the “2023 Plan”)
and the 2023 Non-Employee Director Plan (the “2023 Director Plan” and together with the 2023 Plan, the “Plans”)
and have been asked by the Company to issue the current legal opinion in connection with the common shares of the Company which may be
issued pursuant to the Plans representing in total up to 5,000,000 common shares of the Company (the “Plan Shares”).
We have reviewed, and relied on, (i) the resolutions
adopted by the shareholders of the Company at an extraordinary general meeting held on 7 June 2023 (the “EGM”) approving
inter alia the renewal of an authorized share capital, (ii) the consolidated articles of association of the Company as at 7 June
2023 reflecting the changes approved by the EGM (the “Articles”), (iii) the resolutions of the Company’s Board
of Directors dated 5 April 2023 relating inter alia to the Plans (the “Board
Resolutions”), (iv) the Plans, (v) the Registration Statement and (vi) such corporate records that have been disclosed to us
and such certifications made to us, which we deemed necessary and appropriate as a basis for the opinions hereinafter expressed.
We have assumed for the purposes hereof (i) the genuineness
of all signatures, seals and stamps on all documents submitted to us, and the legal capacity of all individuals who have signed them;
(ii) the completeness and conformity to originals thereof of all documents submitted to us as certified, photostatic, faxed, scanned or
e-mailed copies, the authenticity of the originals of such documents and the conformity to the executed originals of all documents examined
by us in draft or execution form only; (iii) that the documents submitted to us for purposes of this opinion are in full force and effect
and have not been rescinded or amended in any way since the date thereof; (iv) that no proceedings have been instituted or injunction
granted against the Company to restrain it from performing any of its obligations under the Plans and/or issue the Plan Shares; (v) that
the resolutions of the EGM are in full force and effect and the conditions for the effectiveness of these resolutions have been fulfilled
in accordance with applicable law and especially we assume that the publication in the Recueil Electronique des Sociétés
et Associations of the notarial deed recording the EGM and its filing with the Luxembourg Trade and Companies Register will take place
within one month of the EGM; (vi) that the Company will at all times continue to have a sufficient authorised unissued share capital and
sufficient authorised unissued common shares with the relevant authorisation to waive any pre-emptive subscription rights in force; (vii)
that the Company will at all times have sufficient available reserves, to issue Plan Shares all or partially as the case may be by way
of incorporation of available reserves into the issued share capital; (viii) that the Board of Directors or its duly authorised delegates
will duly pass the relevant resolutions for the issue of the Plan Shares (including all or partially as the case may be by way of incorporation
of available reserves into the issued share capital) (the “Decisions”), in accordance with the Articles, the terms
of the Plans, the Board Resolutions, the EGM and applicable law; (ix) that upon issue of any Plan Shares, the Company will receive payment
in cash of an issue price at least equal to the accounting par value of EUR 1 per share or that the relevant Plan Shares will be issued
by way of incorporation of available reserves into the issued share capital and (x) that there will be no amendments to the authorised
share capital of the Company which would adversely affect the issue of the Plan Shares and the conclusions stated in this opinion.
We express no opinion as to any laws other than the
laws of the Grand Duchy of Luxembourg and this opinion is to be construed under Luxembourg law and is subject to the exclusive jurisdiction
of the courts of Luxembourg.
The opinions expressed herein are subject to all limitations
by reason of national or foreign bankruptcy, insolvency, moratorium, controlled management, suspension of payment, fraudulent conveyance,
general settlement of composition with creditors, general settlement with creditors, reorganisation or similar laws affecting the rights
of creditors generally.
Based on the foregoing, and having regard for such
legal considerations as we have deemed relevant, we are of the opinion that the Plan Shares, once duly subscribed to and fully paid and
issued in accordance with the Board Resolutions, the Decisions, the EGM, the Articles, the respective Plan and applicable law, will be
validly issued, fully paid and non-assessable.
In this opinion, Luxembourg legal concepts are
expressed in English terms and not in their original French terms. The concepts concerned may not be identical to the concepts
described by the same English terms as they exist in the laws of other jurisdictions. This opinion may, therefore, only be relied on
upon the express condition that any issues of interpretation or
liability arising thereunder will be governed by Luxembourg law and
be brought before a court in Luxembourg.
This opinion speaks as of the date hereof and no obligation
is assumed to update this opinion occurring after the date hereof.
This opinion is issued solely for the purpose of the
filing of the Registration Statement and the issuance of the Plan Shares by the Company pursuant to the Plans and it is not to be relied
upon in respect of any other matter.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement. In giving such consent we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the U.S. Securities Act of 1933, as amended.
This opinion is issued by and signed on behalf of Arendt
& Medernach SA, admitted to practice in the Grand-Duchy of Luxembourg and registered on the list V of the Luxembourg Bar.
Very truly yours,
| /s/ Alexander Olliges |
By and on behalf of Arendt & Medernach SA
pp. Carsten Opitz, Partner |
EXHIBIT 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to Orion Engineered Carbons S.A.’s 2023 Omnibus Incentive Compensation Plan and 2023 Non-Employee Director
Plan of our reports dated February 23, 2023, with respect to the consolidated financial statements of Orion S.A. (formerly, Orion Engineered
Carbons S.A.) and the effectiveness of internal control over financial reporting of Orion S.A. (formerly, Orion Engineered Carbons S.A.)
included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
Houston, TX
August 9, 2023
EXHIBIT 23.2
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to Orion Engineered Carbons S.A.’s 2023 Omnibus Incentive Compensation Plan and 2023 Non-Employee
Director Plan of our report dated February 18, 2021, with respect to the consolidated financial statements of Orion S.A. (formerly, Orion
Engineered Carbons S.A.) included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft
Cologne, Germany
August 9, 2023
EXHIBIT 107
Calculation of Filing
Fee Tables
Registration Statement
on Form S-8
Orion S.A.
Table 1: Newly Registered
Securities
| Security Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering Price
Per Unit (2) |
Maximum
Aggregate
Offering Price |
Fee
Rate |
Amount of
Registration
Fee |
| Equity |
Common Shares, no par value per share |
Other (2) |
2,000,000 |
$21.31 |
$42,620,000.00 |
$110.20 per $1,000,000 |
$4,696.73 |
| Equity |
Common Shares, no par value per share |
Other (2) |
500,000 |
$21.31 |
$10,655,000.00 |
$110.20 per $1,000,000 |
$1,174.18 |
| Total Offering Amounts |
$53,275,000.00 |
|
$5,870.91 |
| Total Fee Offsets |
|
|
— |
| Net Fee Due |
|
|
$5,870.91 |
| (1) | This Registration Statement covers (A) common shares, no par value (the “Common Shares”) of Orion S.A. (the “Registrant”)
reserved for issuance under the Orion Engineered Carbons S.A. 2023 Omnibus Incentive Compensation Plan and the Orion Engineered Carbons
S.A. 2023 Non-Employee Director Plan (collectively, the “Plans”) and (B) pursuant to Rule 416 of the Securities Act of 1933,
as amended, this Registration Statement shall also cover any additional Common Shares which become issuable under the Plans pursuant to
this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction which results
in an increase in the number of the Registrant’s outstanding Common Shares. |
| (2) | Estimated in accordance with Rule 457(c) solely for purposes of calculating the registration fee. The maximum price per share of the
Common Shares and the maximum aggregate offering price are based on the average of the $21.44 (high) and $21.18 (low) sale price of the
Common Shares as reported on The New York Stock Exchange on August 2, 2023, which date is within five business days prior to filing this
registration statement. |
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