<PAGE> 1
As filed with the Securities and Exchange Commission on July 28, 1999
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
MCCLAIN INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENT)
MICHIGAN 38-1867649
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
________________
6200 ELMRIDGE ROAD
STERLING HEIGHTS, MICHIGAN 48310
(Address of Principal Executive Offices)
1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
KENNETH D. MCCLAIN, PRESIDENT
MCCLAIN INDUSTRIES, INC.
6200 ELMRIDGE ROAD
STERLING HEIGHTS, MICHIGAN 48310
(810) 264-3611
(Name, Address, and Telephone Number, Including Area Code, of Agent for Service)
Copies of all correspondence to:
ROBERT J. GORDON, ESQ.
JAFFE, RAITT, HEUER & WEISS, P.C.
ONE WOODWARD AVENUE
SUITE 2400
DETROIT, MICHIGAN 48226
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
- ------------------- ------------ Share (1) Price (1) ----------------
--------- ---------
Common Stock, no par value 100,000 $ 6.00 $ 600,000 $ 166.80
===============================================================================================================
</TABLE>
(1) Computed in accordance with Rules 457(h) and 457(c) under the Securities
Act of 1933. The estimated exercise price of $6.00 per share was computed in
accordance with Rule 457 based upon the average of the high and low prices of
the Registrant's common stock on July 23, 1999 on the NASDAQ National Market.
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PART I
ITEM 1. PLAN INFORMATION
The documents containing the information specified in this Item 1 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Securities
and Exchange Commission (the "Commission") and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in this Item 2 will
be sent or given to employees, officers, directors or others as specified by
Rule 428(b)(1). In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
1. McClain Industries, Inc.'s ("McClain") Annual Report on Form 10-K
for the year ended September 30, 1998, filed with the Commission on December
23,1998.
2. McClain's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998, filed with the Commission on February 12, 1999, as amended by
Form 10-Q/A filed with the Commission on March 19, 1999.
3. McClain's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999, filed with the Commission on May 7, 1999.
4. McClain's Current Report on Form 8-K dated February 9, 1999, filed
with the Commission on February 10, 1999.
5. The description of the Common Stock contained in McClain's
Registration Statement on Form 8-A filed by McClain with the Commission on May
3, 1974 under Section 12 of the Exchange Act.
In addition, all documents filed by McClain pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement 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 contained herein or in any subsequently
filed document which also is, or is deemed to be, incorporated by reference
herein modifies or supersedes such statement. Except as so modified or
superseded, such statement shall
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not be deemed to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of McClain Common Stock to be issued
pursuant to this registration statement will be passed upon by Jaffe, Raitt,
Heuer & Weiss, P.C. As of July 27, 1999, certain shareholders of Jaffe, Raitt,
Heuer & Weiss, P.C. beneficially owned approximately 8,689 shares of
McClain Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article X of McClain's Articles of Incorporation, as amended, limits
the liability of its directors to the fullest extent permitted by the Michigan
Business Corporation Act (the "MBCA"). Specifically, directors of McClain will
not be personally liable to McClain or its stockholders for monetary damages for
a breach of fiduciary duty as directors, except liability for:
(i) Any breach of the duty of loyalty to McClain or its
stockholders;
(ii) Acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of
law;
(iii) A violation of Section 551 of the MBCA;
(iv) Any transaction from which the director derives an
improper personal benefit; and
(v) Any other act or omission as to which the MBCA does
not permit a director's liability to be so limited.
Section V of McClain's By-laws provides that McClain may indemnify
against expenses, including attorneys' fees, a person who is a party or is
threatened to be made a party to a threatened, pending or completed action, suit
or proceeding, whether civil or criminal, administrative or investigative, or
formal or informal, by reason of their status as a present or former director,
officer, employee or agent of McClain, or who is or was serving at the request
of McClain (the "Indemnitee"). There shall be no indemnification, however, in
claims, issues or matters by McClain, or pursuant to McClain's rights in which a
person is found liable to McClain. Section 563 of the MBCA and Section V(c) of
the By-laws require McClain to indemnify an Indemnitee for expenses, including
attorneys' fees, incurred in an action, suit or proceeding in which the
Indemnitee is successful on the merits or in defense of such action, suit or
proceeding. To be entitled to indemnification, the Indemnitee's actions must
have been in good faith, and reasonably believed to be in, or not opposed to,
the best interests of McClain. Unless ordered by a court of law, indemnification
will be made only on a determination that the Indemnitee's actions have met the
standards set forth in the By-laws, and such determination shall be made by:
(i) A majority vote of a quorum of disinterested
directors;
(ii) If no such quorum is obtainable, then by a majority
vote of a committee of at least two (2) directors;
(iii) By independent legal counsel in a written opinion;
(iv) By a majority vote of the stockholders; or
(v) By a court.
Section V(f) of the By-laws authorizes McClain to purchase and
maintain insurance on behalf of any director, officer, employee or agent of
McClain, or who is serving as such at McClain's request, as protection from
certain liabilities, including liabilities against which McClain cannot provide
indemnification.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the exhibit index filed
as part of this Registration Statement.
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;
(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 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) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table set forth in this 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 change to such
information in this registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) 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
McClain 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.
(b) 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing
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provisions, or otherwise, the Registrant has been advised that in the opinion of
the 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Sterling Heights, State of Michigan, on July 27,
1999.
McCLAIN INDUSTRIES, INC., a Michigan corporation
By: /s/ Kenneth D. McClain
____________________________________________
Kenneth D. McClain, Chairman of the Board
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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 date indicted.
SIGNATURE TITLE DATE
/s/ Kenneth D. McClain Chairman of the Board, July 27, 1999
_________________________ Chief Executive Officer,
Kenneth D. McClain and President.
/s/ Robert W. McClain Senior Vice President and July 27, 1999
__________________________ Assistant Secretary.
Robert W. McClain
/s/ Raymond Elliott Director. July 27, 1999
__________________________
Raymond Elliott
/s/ Walter J. Kirchberger Director. July 27, 1999
__________________________
Walter J. Kirchberger
/s/ Mark S. Mikelait Treasurer. July 27, 1999
__________________________
Mark S. Mikelait
/s/ Carl Jaworski Secretary. July 27, 1999
__________________________
Carl Jaworski
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MCCLAIN INDUSTRIES, INC.
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
4.1 McClain Articles of Incorporation, as Incorporated by
amended reference to McClain's
Registration Statement
on Form S-2 (File No.
33-84562).
4.2 McClain By-laws, as amended Incorporated by
reference to McClain's
Annual Report on Form
10-K for the year ended
September 30, 1989
4.3 McClain 1999 Retainer Stock Plan Filed herewith.
for Non-Employee Directors
5.1 Opinion of Jaffe, Raitt, Heuer & Filed herewith.
Weiss, P.C. with respect to the
validity of the shares of Common
Stock being registered
23.1 Consent of Jaffe, Raitt, Heuer & Filed herewith.
Weiss, P.C. (included as part of
Exhibit 5.1)
23.2 Consent of Rehmann Robson P.C., Filed herewith.
Independent accountants
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EXHIBIT 4.3
MCCLAIN INDUSTRIES, INC.
1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
SECTION 1. TITLE. This plan shall be known as the "McClain Industries,
Inc. 1999 Retainer Stock Plan for Non-Employee Directors" and is referred to
herein as the "Plan."
SECTION 2. ADOPTION OF THE PLAN. The Plan was approved by the Board of
Directors ("Board") of McClain Industries, Inc., a Michigan corporation (the
"Company"), on February 8, 1999. The Plan shall automatically expire and
terminate on December 31, 1999 unless the Plan shall be approved by the
Company's stockholders not later than December 30, 1999.
SECTION 3. ADMINISTRATION OF THE PLAN. The Plan shall be administered
by either the entire Board or, at the discretion of the Board, by a committee
consisting of at least two members of the Board. The administrator of the Plan
shall have the power to devise and implement rules and procedures for the
operation of the Plan, and to interpret and otherwise implement the Plan in all
respects.
SECTION 4. ELIGIBLE DIRECTORS. Any director of the Company or any
subsidiary of the Company who was not an employee of the Company or its
subsidiaries at any time during any fiscal year for which shares of the
Company's Common Stock ("Common Stock") are to be issued under the Plan to such
person ("Eligible Director") is automatically eligible to participate under the
Plan.
SECTION 5. ELECTION TO PARTICIPATE. Eligible Directors may elect to
receive shares of Common Stock in full or partial payment of the directors'
retainer fees and fees for attending Board and Board committee meetings
(including such fees for service on the board of directors of a subsidiary of
the Company) (collectively, "Fees"). If an Eligible Director wishes to
participate under this Plan, he or she must make an election (an "Election") no
later than thirty (30) days prior to a payment date for any Fees (the "Election
Date"). Elections made or modified less than thirty (30) days prior to a payment
date will be effective for the next occurring payment date. Elections will
continue in force until rescinded or modified. An Election (a) must be in
writing and delivered to the Company's Secretary prior to the Election Date, (b)
will be revocable and may be amended or modified from time to time, and (c)
shall specify the percentage or dollar amount of Fees to be paid in shares of
Common Stock.
SECTION 6. ISSUANCE OF SHARES. The Company shall sell and issue shares
of Common Stock to each Eligible Director who has properly made an Election (a
"Participating Director") as payment for the portion of Fees specified in such
Participating Director's Election at the time that any Fees are paid to
directors in accordance with the Company's policies and practices concerning
payment of Fees (the "Issuance Date"). The number of shares of Common Stock to
be issued to a Participating Director shall be determined by dividing the dollar
amount of the Fees such Participating Director elected to receive in shares of
Common Stock by the Fair Market Value (as defined below) of Common Stock on the
first business day prior to the Issuance Date. Any fractional shares of Common
Stock derived from such calculation shall be paid in cash. For purposes of this
Plan, "Fair Market Value" means, on any given date, the last reported sale price
per share of Common Stock on such date or, in case no such sale takes place on
such date, the average of the closing bid and asked prices on such date, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on a national
securities exchange or included for quotation on the Nasdaq National Market, or
if the Common Stock is not so listed or admitted to trading or included for
quotation, the average
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of the highest bid and lowest asked prices for the Common Stock on such date as
reported on the NASDAQ OTC Bulletin Board Service or by the National Quotation
Bureau, Incorporated or any comparable service, or, if the Common Stock is not
quoted by any such organization, the fair market value of a share of Common
Stock as determined in good faith by the Board.
SECTION 7. NUMBER OF SHARES RESERVED. The total number of shares of
Common Stock issuable under the Plan shall not exceed 100,000 shares of Common
Stock; provided, however, that the number and kind of shares available for
issuance under the Plan shall be appropriately adjusted to reflect any stock
dividend, stock split, combination or exchange of shares, merger,
reorganization, consolidation, split-up, spin-off or other change in
capitalization with a similar substantive effect upon shares of Common Stock.
SECTION 8. FEES. All matters relating to the Fees, including, without
limitation, the existence, continuation, amount and frequency of payment, and
all other terms thereof, shall be and remain within the sole and absolute
discretion of the Board.
SECTION 9. SECURITIES LAW RESTRICTIONS. The shares of Common Stock
issuable under the Plan may not be issued by the Company without registration or
qualification of such shares under the Securities Act of 1933, as amended, and
under various state securities laws or without an exemption from such
registration requirements. Unless the shares to be issued under the Plan have
been registered and/or qualified as appropriate, the Company shall be under no
obligation to issue shares of Common Stock under the Plan unless and until such
time as there is an appropriate exemption available from the registration or
qualification requirements of federal and state law as determined by the Board
in its sole and absolute discretion. The Board may require any Participating
Director to agree with the Company to represent and agree in writing that if
such shares of Common Stock are issuable under an exemption from registration
requirements, the shares will be "restricted" securities which may be resold
only in compliance with applicable securities laws, and that such person is
acquiring the shares for investment, and not with the view toward distribution.
SECTION 10. AMENDMENT. The Board shall have complete power and
authority to amend the Plan at any time and no approval by the stockholders of
the Company or by any other person, committee or entity of any kind shall be
required to make any amendment; provided, however, that the Board shall not,
without the requisite affirmative approval of the stockholders of the Company,
make any amendment which requires stockholder approval under any applicable law,
rule or regulation.
SECTION 11. SUSPENSION OR TERMINATION. The Board shall have the right
and power to suspend the operation of or terminate the Plan at any time. If not
earlier terminated, the Plan shall terminate on December 31, 2009. No shares of
Common Stock may be issued under the Plan while the Plan is suspended or after
termination of the Plan.
SECTION 12. COMPLIANCE WITH RULE 16B-3. It is intended that the Plan be
applied and administered in compliance with Rule 16b-3 of the Securities
Exchange Act of 1934, as amended ("Rule 16b-3"). If any provision of the Plan
would be in violation of Rule 16b-3 if applied as written, such provision shall
not have effect as written and shall be given effect so as to comply with Rule
16b-3, as determined by the Board.
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[Letterhead of Jaffe, Raitt, Heuer & Weiss, P.C.]
July 27, 1999
McClain Industries, Inc.
6200 Elmridge Road
Sterling Heights, Michigan 48310
RE: MCCLAIN INDUSTRIES, INC. REGISTRATION STATEMENT ON FORM S-8
1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
Gentlemen:
We have acted as counsel to McClain Industries, Inc. (the "Company"), a
Michigan corporation, in connection with the registration by the Company of up
to 100,000 shares (the "Shares") of Common Stock, no par value, to be issued and
sold by the Company from time to time pursuant to the McClain Industries, Inc.
1999 Retainer Stock Plan for Non-Employee Directors, as described in the
Registration Statement on Form S-8 to be filed with the Securities and Exchange
Commission (together with all amendments thereto, the "Registration Statement").
As your counsel in connection with this transaction, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
the Company in connection with the sale and issuance of the Shares.
We do not purport to be experts on or to express any opinion in this
letter concerning any law other than the laws of the State of Michigan, and this
opinion is qualified accordingly. This opinion is limited to matters expressly
set forth in this letter, and no opinion is to be inferred or may be implied
beyond the matters expressly so stated. In rendering the opinion contained in
this letter, we have assumed without investigation that the information supplied
to us by the Company is accurate and complete.
Based upon and subject to the foregoing, it is our opinion that the
Shares have been duly authorized, and upon the issuance and sale thereof in the
manner referred to in the Registration Statement, will be validly issued, fully
paid and non-assessable.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever it
appears in the Registration Statement.
Very truly yours,
JAFFE, RAITT, HEUER & WEISS
Professional Corporation
/s/ Jaffe, Raitt, Heuer & Weiss, P.C.
-------------------------------------
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CONSENT OF REHMANN ROBSON, P.C.
INDEPENDENT ACCOUNTANTS
McClain Industries, Inc. and Subsidiaries
We consent to the incorporation by reference in the Registration Statement of
McClain Industries, Inc. on Form S-8 pertaining to the Retainer Stock Plan of
our report dated December 7, 1998, on our audits of the consolidated financial
statements contained in the Annual Report of McClain Industries, Inc. on Form
10-k for the year ended September 30, 1998.
/s/ REHMANN ROBSON, P.C.
Farmington Hills, Michigan
July 27, 1999
