As filed with the Securities and Exchange Commission on
December 15, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FRIEDE GOLDMAN INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Mississippi 72-1362492
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
525 East Capitol Street, Suite 402
Jackson, Mississippi 39201
(Address, including zip code, of Principal Executive Offices)
THREE INDIVIDUAL STOCK OPTION GRANTS
TO PURCHASE COMMON STOCK OF
FRIEDE GOLDMAN INTERNATIONAL INC.
(Full title of the plan)
James A. Lowe, III
General Counsel and Secretary
Friede Goldman International Inc.
525 East Capitol Street, Suite 402
Jackson, Mississippi 39201
(601) 352-1107
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------------------------
copy to:
Thomas P. Mason
Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
600 Travis
Houston, Texas 77002
(713) 220-4200
--------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
to be Offering Price Offering Registration
Title of Securities to be Registered registered (2)(3) Per Share (1) Price (1) Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 per share 9,000 $12.03 $108,270 $30.10
========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based upon the average of the high and low price
per share of the Company's common stock for December 14, 1998 on the New
York Stock Exchange as reported in The Wall Street Journal on December 15,
1998.
(2) The indicated shares represent shares that may be issued upon exercise of
stock options granted to employees of the Company (as defined in General
Instruction A(1)(a) to Form S-8) pursuant to individual option agreements
outside the Company's 1997 Equity Incentive Plan. Such options were granted
on August 26, 1997 to the following persons: Fred Cruz (4,000 shares),
Brian Harger (4,000 shares) and Ricky Parker (1,000 shares).
(3) The number of shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) 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").
These documents and the documents incorporated by reference hereto 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Friede Goldman International Inc. (the "Company") hereby
incorporates by reference the following documents listed below. In addition, all
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities and Exchange Act of 1934 (the "Exchange Act")
(prior to the filing of a post-effective amendment which indicates that all the
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 thereof from the date of filing of such
documents.
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997 as filed with the Securities and Exchange Commission
(the "Commission") on March 30, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the
quarters ended April 5, 1998, July 5, 1998 and October 4, 1998 as filed with the
Commission on May 15, 1998, August 14, 1998 and October 12, 1998, respectively.
(c) The Company's current Report on Form 8-K dated as of
January 16, 1998.
(d) The Company's current Report on Form 8-K dated as of
February 18, 1998.
(e) The Company's current Report on Form 8-K/A dated as of
March 17, 1998.
(f) The Company's current Report on Form 8-K/A dated as of
April 21, 1998.
(g) The description of the Company's common stock, par value
$0.01 (the "Common Stock"), contained in the Company's Registration Statement on
Form 8-A (File No. 001-14627) filed with the Commission on October 18, 1998,
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement since the class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Subsection (a) of Section 79-4-8.51 ("Section 8.51") of the
Mississippi Business Corporation Act (the "MBCA"), as amended, authorizes
corporations to indemnify an individual made a party to a proceeding because he
is a director against liability incurred in the proceeding if (1) he conducted
himself in good faith and (2) he reasonably believed, in the case of conduct in
his official capacity, that his conduct was in the best interests of the
corporation, and in all other cases, that his conduct was at least not opposed
to its best interests and (3) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful. Subsection (d) of Section
8.51 provides that a corporation may not indemnify a director (i) in connection
with a proceeding by or in the right of the corporation,
II-2
<PAGE>
except for reasonable expenses incurred in connection with a proceeding if it is
determined that the director has met the relevant standard of conduct under
subsection (a) described above, or (ii) in connection with any proceeding with
respect to conduct for which he was adjudged liable on the basis that he
received a financial benefit to which he was not entitled, whether or not
involving action in his official capacity.
Section 79-4-8.52 ("Section 8.52") of the MBCA provides that a
corporation shall indemnify a director who was wholly successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party because
he was a director of the corporation against reasonable expenses incurred by him
in connection with the proceeding.
Section 79-4-8.54 of the MBCA authorizes a director of the
corporation who is a party to a proceeding to apply for indemnification or an
advance of expenses to the court conducting the proceeding or to another court
of competent jurisdiction. The court may order (i) indemnification if it
determines the director is entitled to mandatory indemnification under Section
8.52, (ii) indemnification or advance of expenses if it determines the director
is so entitled under the articles of incorporation, bylaws, resolution of the
corporation or contract approved by the board of directors or shareholders, or
(iii) indemnification or advance of expenses if it determines that it is fair
and reasonable.
Section 79-4-8.56 of the MBCA provides that a corporation may
indemnify and advance expenses to an officer of the corporation who is a party
to a proceeding because he is an officer of the corporation (i) to the same
extent as to a director, and (ii) if he is an officer but not a director, to
such further extent as provided for in the articles of incorporation, bylaws,
resolution of the board of directors or contract, except for (A) liability in
connection with a proceeding by or in the right of the corporation other than
for reasonable expenses incurred in connection with the proceeding or (B)
liability arising out of conduct that constitutes (1) receipt by him of a
financial benefit to which he is not entitled, (2) an intentional infliction of
harm on the corporation or shareholders, or (iii) an intentional violation of
criminal law.
Section 79-4-8.57 of the MBCA authorizes a corporation to
purchase and maintain insurance on behalf of an individual who is a director or
officer of the corporation, or who, while a director or officer of the
corporation, serves at the corporation's request as a director, officer,
partner, trustee, employee or agent of another domestic or foreign partnership,
joint venture, trust, employee benefit plan or other entity, against liability
asserted against or incurred by him in that capacity or arising from his status
as a director or officer, whether or not the corporation would have power to
indemnify or advance expenses to him against the same liability under the
indemnification provisions of the MBCA.
Section 79-4-2.02(b)(4) of the MBCA, as amended, provides that
the Articles of Incorporation may contain a provision eliminating or limiting
the liability of a director to the corporation or its shareholders for money
damages for any action taken, or any failure to take any action, as a director,
except liability for (i) the amount of a financial benefit received by a
director to which he is not entitled, (ii) an intentional infliction of harm on
the corporation or the shareholders, (iii) a violation of Section 79-4-8.33 of
the MBCA dealing with liability for unlawful distributions or (iv) an
intentional violation of criminal law.
Article Ninth of the Company's Amended and Restated Articles
of Incorporation states that:
No director of the Corporation shall be personally liable to
the Corporation or its shareholders for monetary damages for breach of fiduciary
duty by such director as a director; provided however, that this Article Ninth
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 79-4-8.33 of the MBCA or (iv) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal of this
Article Ninth shall apply to, or have any effect on, the liability or alleged
liability of any director of the Corporation for or with respect to any acts or
missions of such director occurring prior to such amendment or repeal. If the
laws of the State of Mississippi are amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the laws of the State of Mississippi, as so amended.
In addition, Article VI of the Company's Bylaws further
provides that the Company shall indemnify its officers, directors and employees
to the fullest extent permitted by law.
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<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
- ------ -----------
4.1 Articles of Incorporation (incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A filed with the
Commission on November 18, 1998).
4.2 Bylaws (incorporated by reference to Exhibit 2 to the Company's
Registration Statement on Form 8-A filed with the Commission on
November 18, 1998).
5.1* Opinion of Watkins & Eager PLLC as to the legality of the shares being
registered.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Watkins & Eager PLLC (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.3* Consent of Ernst & Young Audit.
23.4* Consent of Grant Thornton Chartered Accountants.
24.1* Power of Attorney (set forth on the signature page contained in Part II
of this Registration Statement).
- --------------------
*Filed herewith.
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 this 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 this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(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 by the Company 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.
II-4
<PAGE>
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, 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 Jackson, State of Mississippi, on
the 15th day of December 1998.
FRIEDE GOLDMAN INTERNATIONAL INC.
By: /s/ James A. Lowe, III
--------------------------------
James A. Lowe, III
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Friede Goldman International Inc. (the "Company"), hereby
constitutes and appoints J. L. Holloway and James A. Lowe, III, or either of
them (with full power to each of them to act alone), his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and on
his behalf and in his name, place and stead, in any and all capacities, to
sign, execute and file this Registration Statement under the Securities Act of
1933, as amended, and any or all amendments (including, without limitation,
post-effective amendments), with all exhibits and any and all documents
required to be filed with respect thereto, with the Securities and Exchange
Commission or any regulatory authority, granting unto such attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same, as fully to all intents and purposes
as he himself might or could do, if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ J. L. Holloway Chairman of the Board of Directors, December 15, 1998
- ---------------------------------------- President and Chief Executive Officer
J. L. Holloway
/s/ Jobie T. Melton
- --------------------------------------- Chief Financial Officer (Principal Financial December 15, 1998
Jobie T. Melton Officer and Principal Accounting Officer)
/s/ Alan A. Baker Director December 15, 1998
---------------------------------------
Alan A. Baker
/s/ T. Jay Collins Director December 15, 1998
---------------------------------------
T. Jay Collins
/s/ John G. Corlew Director December 15, 1998
---------------------------------------
John G. Corlew
/s/ Jerome L. Goldman Director December 15, 1998
---------------------------------------
Jerome L. Goldman
/s/ Raymond E. Mabus, Jr. Director December 15, 1998
---------------------------------------
Raymond E. Mabus, Jr.
/s/ Howell W. Tod Director December 15, 1998
---------------------------------------
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Articles of Incorporation (incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A filed with the
Commission on November 18, 1998).
4.2 Bylaws (incorporated by reference to Exhibit 2 to the Company's
Registration Statement on Form 8-A filed with the Commission on
November 18, 1998).
5.1* Opinion of Watkins & Eager PLLC as to the legality of the shares being
registered.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Watkins & Eager PLLC (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
23.3* Consent of Ernst & Young Audit.
23.4* Consent of Grant Thornton Chartered Accountants.
24.1* Power of Attorney (set forth on the signature page contained in Part II
of this Registration Statement).
- --------------------
*Filed herewith.
II-7
Exhibit 23.1
December 15, 1998
Board of Directors
Friede Goldman International Inc.
525 East Capitol Street, Suite 402
Jackson, Mississippi 39201
Gentlemen:
We have acted as counsel to Friede Goldman International
Inc. (the "Company") in connection with the Company's Registration Statement on
Form S-8 (the "Registration Statement") relating to the registration under the
Securities Act of 1933, as amended, of the issuance of up to 9,000 shares (the
"Shares") of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), pursuant to three individual stock option agreements to purchase common
stock of the Company.
In connection herewith, we have examined copies of such
statutes, regulations, corporate records and documents, certificates of public
and corporate officials and other agreements, contracts, documents and
instruments as we have deemed necessary as a basis for the opinion hereafter
expressed. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
copies. We have also relied, to the extent we deem such reliance proper, upon
information supplied by officers and employees of the Company with respect to
various factual matters material to our opinion.
Based upon the foregoing and having due regard for such
legal considerations as we deem relevant, we are of the opinion that the Shares
have been duly authorized, and that such Shares of Common Stock will, when
issued in accordance with the terms of the Plan, be legally issued, fully paid
and nonassessable.
We note that John G. Corlew, a member of this firm, is a
director of the Company.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
WATKINS & EAGER PLLC
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated February 11, 1998, included in Friede Goldman International
Inc.'s Form 10-K for the year ended December 31, 1997, and to all references
to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
New Orleans, Louisiana
December 14, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the three individual stock option grants to purchase
common stock of Friede Goldman International, Inc. of our report dated April
17, 1998, with respect to the consolidated financial statements of Achere,
S.A. for the year ended December 31, 1997 included in the Current Report on
Form 8-K/A dated April 21, 1998, filed by Friede Goldman International Inc.
with the Securities and Exchange Commission.
ERNST & YOUNG AUDIT
Nantes, France
December 16, 1998
Exhibit 23.4
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report on the financial statements of
Newfoundland Ocean Enterprises Limited dated May 12, 1997, which appears in
Exhibit 99.3 of the Report on Form 8-K/A dated as of March 17, 1998.
St. John's, Newfoundland, Canada GRANT THORNTON
December 16, 1998 Chartered Accountants
