As filed with the Securities and Exchange Commission on June 19, 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)
Delaware 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)
FRIEDE GOLDMAN INTERNATIONAL INC.
AMENDED AND RESTATED 1997 EQUITY INCENTIVE PLAN
(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) Per Share (1) Price (1) Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 per share 2,400,000 $27.66 $66,384,000 $19,583.28
=========================================================================================================================
</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 June 18, 1998 on the Nasdaq
National Market as reported in The Wall Street Journal on June 19, 1998.
(2) 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 quarter ended
April 5, 1998 as filed with the Commission on May 15, 1998.
(c) The Company's current Report on Form 8-K/A dated as of April 21,
1998.
(d) The Company's current Report on Form 8-K/A dated as of March 17,
1998.
(e) The Company's current Report on Form 8-K dated as of February 18,
1998.
(f) The Company's current Report on Form 8-K dated as of January 16,
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
(No. 0-22595) filed with the Commission on May 22, 1997, 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 145 of the General Corporation Law of the
State of Delaware ("Section 145") empowers a corporation to indemnify 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
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him
II-2
<PAGE>
in connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
made to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; that indemnification provided for by Section
145 shall, unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of such person's heirs, executors and administrators; and
empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a charter may contain a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
Article Ninth of the Company's Amended and Restated Certificate of
Incorporation states that:
No director of the Corporation shall be personally liable to the
Corporation or its stockholders 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 stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL 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 omissions
of such director occurring prior to such amendment or repeal. If the DGCL is
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 DGCL, 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
II-3
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (No. 333-27599)).
4.2 Bylaws (incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (No. 333-27599)).
4.3 Friede Goldman International Inc. Amended and Restated 1997 Equity Incentive Plan (incorporated
by reference to Exhibit 10.12 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1997).
5.1* Opinion of Andrews & Kurth L.L.P. as to the legality of the shares being registered.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Andrews & Kurth L.L.P. (included in the opinion filed as Exhibit 5.1 to this Registration
Statement).
23.3* Consent of Ernst & Young Audit.
23.4* Consent of Doane Raymond Chartered Accountants.
24.1* Power of Attorney (set forth on the signature page contained in Part II of this Registration Statement).
</TABLE>
- --------------------
*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 19th day of June, 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, June 19, 1998
----------------------------------- President and Chief Executive Officer
J. L. Holloway
/s/ Linda B. Helton Controller (Principal Financial Officer June 19, 1998
----------------------------------- and Principal Accounting Officer)
Linda B. Helton
Director June , 1998
-----------------------------------
Alan A. Baker
/s/ T. Jay Collins Director June 19, 1998
-----------------------------------
T. Jay Collins
/s/ John G. Corlew Director June 19, 1998
-----------------------------------
John G. Corlew
/s/ Jerome L. Goldman Director June 19, 1998
-----------------------------------
Jerome L. Goldman
Director June , 1998
-----------------------------------
Raymond E. Mabus, Jr.
/s/ Howell W. Todd Director June 19, 1998
-----------------------------------
Howell W. Todd
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (No. 333-27599)).
4.2 Bylaws (incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (No. 333-27599)).
4.3 Friede Goldman International Inc. Amended and Restated 1997 Equity Incentive Plan (incorporated
by reference to Exhibit 10.12 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1997).
5.1* Opinion of Andrews & Kurth L.L.P. as to the legality of the shares being registered.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Andrews & Kurth L.L.P. (included in the opinion filed as Exhibit 5.1 to this Registration
Statement).
23.3* Consent of Ernst & Young Audit.
23.4* Consent of Doane Raymond Chartered Accountants.
24.1* Power of Attorney (set forth on the signature page contained in Part II of this Registration Statement).
</TABLE>
--------------------
*Filed herewith.
II-7
Exhibit 5.1
[Letterhead of Andrews & Kurth L.L.P.]
June 19, 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 2,400,000 shares (the
"Shares") of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), pursuant to the Friede Goldman International Inc. Amended and Restated
1997 Equity Incentive Plan (the "Plan").
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 hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Andrews & Kurth L.L.P.
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
Jackson, Mississippi
June 19, 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 Friede Goldman International Inc. Amended and
Restated 1997 Equity Incentive Plan 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.
/s/ Ernst & Young Audit
Nantes, France
June 19, 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 /s/ Doane Raymond
June 19, 1998 Chartered Accountants
