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.
PHANTOM STOCK AND
DEFERRED COMPENSATION 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) $35.44(3) $8,860,000(3) $2,684.85
======================== ================= ============== ================ ===============
<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 Phantom Stock
and Deferred Compensation Plan for Non-Employee Directors.
(3) Estimated solely for the purpose of determining the registration fee and calculated pursuant to Rule 457(c) and
(h) 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.
</FN>
</TABLE>
EXHIBIT INDEX LOCATED AT PAGE 9
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, or portions of documents, previously filed by
Southdown, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
2. The description of the Company's Common Stock, $1.25 par value,
contained in the Company's Form 8-C dated September 19, 1969.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this Registration Statement and 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 in this Registration Statement and to be
a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement herein or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such
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<PAGE>
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of 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 Louisiana Business Corporation Law ("LBCL") generally gives a
corporation the power to indemnify any of its directors or officers against
certain expenses, judgments, fines and amounts paid in settlement in connection
with certain actions, suits or proceedings, provided generally that such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. In the case of an action by, or in the right of, the corporation, the
corporation may indemnify such person against expenses, including attorneys'
fees and amounts paid in settlement not exceeding, in the judgment of the board
of directors, the estimated expense of litigating the action to conclusion,
actually and reasonably incurred in connection with the defense or settlement of
such action, and no indemnification shall be made in respect of any claim,
issue, or matter as to which such person shall have been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
for willful or intentional misconduct in the performance of his duty to the
corporation, unless, and only to the extent that the court shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, he is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
Indemnification provided pursuant to the foregoing provisions is not,
under the LBCL, deemed exclusive of any other rights to which the person
indemnified is entitled under any bylaw, agreement, authorization of
shareholders or directors; however, no such other indemnification measure shall
permit indemnification of any person for the results of such person's willful or
intentional misconduct. In addition, the LBCL contains provisions to the general
effect that any director shall in the performance of his duties be fully
protected in relying in good faith upon the records of the corporation and upon
such information, opinions, reports or statements presented to the corporation,
the board of directors, or any committee thereof by any of the corporation's
officers or employees, or by any committee of the board of directors, or by any
counsel, appraiser, engineer (including a petroleum reservoir engineer), or
independent or certified public accountant selected by
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<PAGE>
the board of directors or any committee thereof with reasonable care, or by any
other person as to matters the director reasonably believes are within such
other person's professional or expert competence and which person is selected by
the board of directors or any committee thereof with reasonable care. A director
shall not be liable for the commission of a prohibited act if his dissent was
either noted in the minutes of the meetings or filed promptly thereafter in the
registered office of the corporation.
As permitted under Section 24(C)(4) of the LBCL, Article XIII of the
Restated Articles of Incorporation of the Company eliminates the personal
liability of any director or officer to the Company or its shareholders for
monetary damages for breach of fiduciary duty in such capacity, except for (i)
any breach of the duty of loyalty to the Company or its shareholders; (ii) acts
or omissions not in good faith or involving intentional misconduct or a knowing
violation of law; (iii) unlawful payment of dividends or unlawful stock purchase
or redemption; or (iv) any transaction from which the director or officer
derived an improper personal benefit.
Article VI, Section 6 of the Company's Bylaws contemplates that the
Company shall indemnify its directors and officers to the maximum extent
permitted by Louisiana law.
In addition, the Company has purchased a liability insurance policy
under which its directors and officers are indemnified against certain losses
arising from certain claims that may be made against them by reason of their
serving in such capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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
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<PAGE>
99 Southdown, Inc. Phantom Stock and Deferred Compensation Plan for
Non-Employee Directors (incorporated by reference to Exhibit
10.12 to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996.
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 Actof 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 the 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 the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall
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.
(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.
(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
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by
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<PAGE>
reference in the 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 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 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 Act and will
be governed by the final adjudication of such issue.
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<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
-------------------------
Clarence C. Comer Executive Officer
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
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<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>
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<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. Phantom Stock and Deferred Compensation Plan for
Non-Employee Directors (incorporated by reference to Exhibit
10.12 to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996).
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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
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.), pursuant to the terms of the Company's
Phantom Stock and Deferred Compensation Plan for Non-Employee Directors (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 relating to 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, when the Plan shall have been duly approved by the
shareholders of the Company, will be duly authorized and, when
issued, and delivered, 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, against receipt by the Company of
consideration at least equal to the par value of the Shares, all
in accordance with the provisions and conditions of the Plan,
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 Lousiana Street
Suite 2900
Houston, Texas 77002
Re: Southdown, Inc.
Phantom Stock 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
Acts 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 under the Southdown, Inc. Phantom Stock and Deferred Compensation Plan
for Non-Employee Directors (the "Plan").
In connection with this representation and our opinion
rendered in this letter, we have reviewed copies of the following document: (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.
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
of facsimiles; (d) the truthfulness of all statements of facts 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; (f) that the purchase price for all Shares
issued 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, comply with all applicable laws other than the laws of
the State of Louisiana. In addition, in rendering the opinions expressed in this
letter, we have assumed the accuracy and completeness of, and have relied upon,
certifications by public officials and officers of the Company.
<PAGE>
Southdown, Inc.
May 5, 1997
Page 2
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, when the Plan shall have been duly approved by the
shareholders of the Company, will be duly authorized and, when
issued, and delivered, 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, against receipt by the Company of
consideration at least equal to the par value of the Shares, all
in accordance with the provisions and conditions of the Plan,
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.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 5 to the Registration Statement
and the use 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.
<PAGE>
Southdown, Inc.
May 5, 1997
Page 3
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
