AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 5, 1997
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SOUTHDOWN, INC.
(Exact name of registrant as specified in its charter)
LOUISIANA 72-0296500
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 SMITH STREET, SUITE 2400 77002
HOUSTON, TEXAS (Zip Code)
(Address of Principal Executive Offices)
SOUTHDOWN, INC.
1991 NONQUALIFIED STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full title of plan)
PATRICK S. BULLARD
VICE PRESIDENT AND GENERAL COUNSEL
SOUTHDOWN, INC.
1200 SMITH STREET, SUITE 2400
HOUSTON, TEXAS 77002
(Name and address of agent for service)
(713) 650-6200
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered(1) Registered Price Per Share Offering Price Registration Fee
------------------- ------------- ----------------- ------------------ -----------------
<S> <C> <C> <C> <C>
Common Stock,
$1.25 par value 250,000 shares(2) (3) $8,526,400(3) $2,583.76
=================== ================= ================== ================== ================
<FN>
(1) Includes the Preferred Stock Purchase Rights issuable pursuant to the Rights Agreement dated March 14, 1991, between the
Registrant and Chemical Mellon Shareholders Services, Inc.
(2) Pursuant to Rule 416, includes any additional shares issued pursuant to the antidilution provisions of the
1991 Nonqualified Stock Option Plan for Non-Employee Directors.
(3) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating the registration fee as follows:
(i) the filing fee for the 230,000 shares not presently under option was calculated by reference to
the average of the high and low sales prices of the Common Stock on the New York Stock Exchange on April 28, 1997,
which was $35.44 per share, for a total maximum offering price for such 230,000 shares of $8,151,200.
(ii)the filing fee for the 20,000 shares presently under option was calculated by reference to the average price per
share at which each share under option is exercisable, $18.76 for a total maximum offering price for such shares
of $375,200.
</FN>
</TABLE>
EXHIBIT INDEX LOCATED AT PAGE 5
<PAGE>
GENERAL
Pursuant to Instruction E to Form S-8, the contents of the Registration
Statement on Form S-8 (Registration No. 33-45144) of Southdown, Inc. are
incorporated herein by reference.
This Registration Statement is filed solely to register additional
securities of the same class as the securities registered pursuant to the
effective Registration Statement referenced above relating to an employee
benefit plan.
-2-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on March 31, 1997.
SOUTHDOWN, INC.
By: CLARENCE C. COMER
------------------------------
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/ CLARENCE C. COMER President and Chief March 31, 1997
------------------------- Executive Officer
Clarence C. Comer and Director
/S/ JAMES L. PERSKY Executive Vice President -- March 31, 1997
------------------------------
James L. Persky Finance and Administration
/S/ ALLAN B. KORSAKOV Corporate Controller March 31, 1997
------------------------
Allan B. Korsakov
/S/ W. J. CONWAY Director March 31, 1997
---------------------------------
W. J. Conway
/S/ V. H. VAN HORN III Director March 31, 1997
-------------------------------
V. H. Van Horn III
/S/ KILLIAN L. HUGER, JR. Director March 31, 1997
Killian L. Huger, Jr.
/S/ ROBERT G. POTTER Director March 31, 1997
---------------------------
Robert G. Potter
/S/ FRANK J. RYAN Director March 31, 1997
--------------------------------
Frank J. Ryan
-3-
<PAGE>
/S/ WHITSON SADLER Director March 31, 1997
Whitson Sadler
/S/ ROBERT J. SLATER Director March 31, 1997
-----------------------------
Robert J. Slater
/S/ DAVID J. TIPPECONNIC Director March 31, 1997
--------------------------
David J. Tippeconnic
/S/ RONALD N. TUTOR Director March 31, 1997
----------------------------
Ronald N. Tutor
/S/ STEVEN B. WOLITZER Director March 31, 1997
--------------------------
Steven B. Wolitzer
</TABLE>
-4-
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- ----------------------------------------------------------------------
5 Opinions of Bracewell & Patterson, L.L.P. and Correro Fishman Haygood
Phelps Weiss Walmsley & Casteix regarding the legality of the shares
of Common Stock covered by this Registration Statement.
23.1 Consents of Bracewell & Patterson, L.L.P. and Correro Fishman Haygood
Phelps Weiss Walmsley & Casteix (included in their opinions filed as
Exhibit 5 hereto).
23.2 Consent of Deloitte & Touche LLP
99 Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non- Employee
Directors, as amended (incorporated by reference to Exhibit 10.11 to
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996).
-5-
EXHIBIT 5
May 1, 1997
Southdown, Inc.
1200 Smith Street, Suite 2400
Houston, Texas 77002
Gentlemen:
We have acted as counsel to Southdown, Inc., a Louisiana corporation (the
"Company"), in connection with the proposed issuance by the Company of up to an
additional 250,000 shares (the "Shares") of Common Stock, $1.25 par value per
share (including the associated Rights attached thereto issuable pursuant to the
Rights Agreement dated as of March 4, 1991 between the Company and Chemical
Mellon Shareholder Services, Inc., the "Common Stock"), upon the exercise of
options granted to directors of the Company pursuant to the terms of the
Company's 1991 Nonqualified Stock Option Plan for Non-Employee Directors, as
amended (the "Plan"). The Company has filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended, a
Registration Statement on Form S-8 (Registration No. 33-45144) relating to
150,000 shares of Common Stock subject to the Plan and a second Registration
Statement on Form S-8 for the Shares (the "Registration Statement").
We have examined originals or copies of (i) the Restated Articles of
Incorporation of the Company, as amended, (ii) the Bylaws of the Company, as
amended, (iii) the Plan, (iv) certain resolutions of the Board of Directors of
the Company, and (v) such other documents and records as we have deemed
necessary and relevant for purposes hereof. In addition, we have relied on
certificates of officers of the Company and certificates and telegrams of public
officials as to certain matters of fact relating to this opinion and have made
such investigations of law as we have deemed necessary and relevant as a basis
hereof.
We have assumed the genuineness of all signatures, the authenticity of all
documents, certificates and records submitted to us as originals, the conformity
to original documents, certificates and records of all documents, certificates
and records submitted to us as copies, and the truthfulness of all statements of
fact contained therein.
<PAGE>
Based upon the foregoing and subject to the limitations and assumptions set
forth herein and having due regard for such legal considerations as we deem
relevant, we are of the opinion that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Louisiana.
2. The Shares have been duly authorized and, when issued, delivered and
paid for, and when certificates representing the Shares shall have
been executed in facsimile by proper officers of the Company,
authenticated by the transfer agent for the Shares, and delivered for
a consideration at least equal to the par value of the Shares, all in
accordance with the provisions and conditions of the Plan and the
Agreement, will be validly issued, fully paid and nonassessable.
The foregoing opinion is based on and is limited to the laws of the State of
Texas and the State of Louisiana and the relevant law of the United States of
America, and we render no opinion with respect to the law of any other
jurisdiction. Insofar as the law of the State of Louisiana is applicable to the
matters discussed herein, we have relied upon the opinion of Correro Fishman
Haygood Phelps Weiss Walmsley & Casteix, a copy of which is attached hereto, and
our opinion is subject to the qualifications, limitations and assumptions set
forth therein. We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement.
Very truly yours,
Bracewell & Patterson,L.L.P.
<PAGE>
May 1, 1997
Bracewell & Patterson, L.L.P.
711 Louisiana Street
Suite 2900
Houston, Texas 77002
Re: Southdown, Inc.
1991 Nonqualified Option Plan
For Non-Employee Directors
Registration Statement on Form S-8
Dear Gentlemen and Ladies:
We have been asked to render this opinion as Louisiana counsel
to Southdown, Inc., a Louisiana corporation (the "Company"), in connection with
the Registration Statement on Form S-8 filed by the Company under the Securities
Act of 1933, as amended (the "Registration Statement"), with respect to 250,000
shares of the Company's Common Stock, $1.25 par value per share (the "Shares"),
issuable upon the exercise of stock options to be granted under the Southdown,
Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors (the "Plan")
and related agreements (each an "Agreement") as provided for by the provisions
of the Plan. The Company has previously filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, a Registration
Statement on Form S-8 relating to 150,000 shares of Common Stock subject to the
Plan.
In connection with this representation and our opinion
rendered in this letter, we have reviewed copies of the following documents: (a)
the Plan; (b) a specimen of the certificates to be used to represent the Shares
(the "Certificates"); (c) the Restated Articles of Incorporation of the Company,
as amended through this date; (d) the Bylaws of the Company, as amended through
this date; (e) certain resolutions of the Board of Directors of the Company; and
(f) certificates of officers of the Company and of public officials.
<PAGE>
Southdown, Inc.
May 5, 1997
Page 2
For the purpose of the opinion expressed in this letter, we
have assumed: (a) the legal capacity of all natural persons; (b) the genuineness
of all signatures; (c) the authenticity of all documents, certificates and
records submitted to us as originals, the conformity to original documents,
certificates and records of all documents, certificates and records submitted to
us as copies or facsimiles and the authenticity of the originals of such copies
or facsimiles; (e) the truthfulness of all statements of fact and
representations and warranties contained in the documents, certificates and
records submitted us; (e) the proper grant of options in accordance with the
terms and conditions of the Plan and the pertinent Agreement; (f) that the
purchase price for all Shares issued on the exercise of options granted under
the Plan will have been paid in full in cash, property or services previously
rendered to the Company prior to the issuance thereof and will not be less than
the aggregate par value of the Shares so issued; and (g) that all documents,
certificates and records referred to in this letter, including but not limited
to the Plan and the Agreement, comply with all applicable laws other than the
laws of the State of Louisiana.
Based upon and in reliance on the foregoing and subject to the
qualifications, limitations and assumptions set forth herein, we are of the
opinion that:
1. The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Louisiana.
2. The Shares have been duly authorized and, when issued, delivered and
paid for, and when certificates representing the Shares shall have
been executed in facsimile by proper officers of the Company,
authenticated by the transfer agent for the Shares, and delivered for
a consideration at least equal to the par value of the Shares, all in
accordance with the provisions and conditions of the Plan and the
Agreement, will be validly issued, fully paid and nonassessable.
3. No personal liability will attach to the ownership of the Shares under
the laws of the State of Louisiana.
The opinion expressed in this letter is subject to limitations
imposed by the effect of general equitable principles, including without
limitation the effect of concepts of good faith and fiduciary requirements. In
addition, the opinion expressed in this letter is given only as of this date, is
based on the law as in effect on this date and is limited to the matters stated
herein and no opinion may be inferred beyond the matters expressly stated. We
have no obligation, and will not undertake, to report to you or any third
parties changes in facts or laws, statutes or case law.
<PAGE>
Southdown, Inc.
May 5, 1997
Page 3
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 5 to the Registration Statement
and the used of our name therein. This opinion may not be used, circulated or
quoted, in whole or in part, or relied upon for any other purpose or by any
person other than you and the Company without our prior written consent.
We are members of the Louisiana Bar, and the opinion in this
letter is based on and limited to the laws of the State of Louisiana. The
opinion contained in this letter is limited in that we express no opinion with
respect to federal laws, state blue sky or other securities laws, tax or
environmental laws or matters, the laws of any municipality, county or other
political subdivision of the State of Louisiana or any agency thereof, or the
laws of any jurisdiction other than Louisiana.
Very truly yours,
Correro Fishman Haygood Phelps
Weiss Walmsley & Casteix
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Southdown, Inc. on Form S-8 of our report dated January 22, 1997, appearing in
the Annual Report on Form 10-K of Southdown, Inc. for the year ended December
31, 1996.
DELOITTE & TOUCHE LLP
Houston, Texas
May 1, 1997
