<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 1996
REGISTRATION NO. 333-69
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 4
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MAXXAM INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 95-2078752
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
(713) 975-7600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ANTHONY R. PIERNO
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
MAXXAM INC.
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
(713) 975-7600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
BERNARD L. BIRKEL HOWARD A. SOBEL
SENIOR CORPORATE COUNSEL KRAMER, LEVIN, NAFTALIS,
MAXXAM INC. NESSEN, KAMIN & FRANKEL
5847 SAN FELIPE, SUITE 2600 919 THIRD AVENUE
HOUSTON, TEXAS 77057 NEW YORK, NEW YORK 10022
(713) 975-7600 (212) 715-9100
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective, as determined by
market conditions and other factors.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses of this offering will be paid by MAXXAM Inc. (the "Company")
and, exclusive of underwriting discounts and commissions, are as follows:
<TABLE>
<S> <C>
SEC registration fee............................................. $ 68,966
*Printing and engraving.......................................... 350,000
*Legal fees and expenses......................................... 200,000
*Accounting fees and expenses.................................... 200,000
*Blue Sky fees and expenses (including counsel fees)............. 15,000
*Trustee fees and expenses....................................... 12,500
*Expenses incurred by Kaiser Aluminum Corporation................ 300,000
*Miscellaneous................................................... 53,534
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Total.......................................................... $1,200,000
==========
</TABLE>
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* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of the director's fiduciary duty, except (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) pursuant to Section 174 of the
DGCL (providing for liability of directors for unlawful payment of dividends
or unlawful stock purchases or redemptions), or (iv) for any transaction from
which the director derived an improper personal benefit.
Reference also is made to Section 145 of the DGCL which provides that a
corporation may indemnify any person, including directors and officers, who
was or is, or is threatened to be made, a party to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent
of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the corporation's best
interests and, with respect to any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful. A Delaware corporation may
indemnify its directors, officers, employees and agents in an action by or in
the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the director,
officer, employee or agent is adjudged to be liable to the corporation. Where
a director, officer, employee or agent is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which such director, officer, employee or
agent actually and reasonably incurred in connection therewith.
The Company's Articles of Incorporation (Article Twelfth) and By-laws
(Article IX) provide generally that the directors, officers of the Company and
certain other persons shall be indemnified to the fullest extent permitted by
Delaware law.
Subject to certain limitations and exceptions, the Company has insurance
coverage for losses by any person who is or hereafter may be a director or
officer of the Company arising from claims against that person for any
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wrongful act in his capacity as a director or officer of the Company or any of
its subsidiaries. The policy also provides for reimbursement to the Company
for indemnification given by the Company pursuant to common or statutory law
or its certificate or incorporation or by-laws to any such person arising from
any such claims.
The foregoing discussion is qualified in its entirety by reference to the
DGCL and the Company's Articles of Incorporation and By-laws.
ITEM 16. EXHIBITS.
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
*4.1 Form of Indenture between the Company and State Street Bank and Trust
Company, Trustee (the "Indenture")
5.1 Opinion of Anthony R. Pierno, General Counsel of the Company, with
respect to the Securities to be issued under the Indenture
*12 Computation of Ratio of Earnings to Fixed Charges for the years ended
December 31, 1995, 1994, 1993, 1992 and 1991
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Wharton Levin Ehrmantraut Klein & Nash, P.A.
*23.3 Consent of Thelen, Marrin, Johnson & Bridges
23.4 Consent of Anthony R. Pierno, Senior Vice President and General
Counsel of the Company (contained in Exhibit 5.1)
*25 Power of Attorney (on signature page)
*26.1 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of a Corporation Designated to Act
as Trustee with respect to the Indenture
99.1 The Audited Consolidated Financial Statements and Notes thereto of
Kaiser Aluminum Corporation for the fiscal year ended December 31,
1995 (incorporated herein by reference to Exhibit 99.1 to the Annual
Report on Form 10-K of MAXXAM Group Inc. for the fiscal year ended
December 31, 1995, File No. 1-8857)
</TABLE>
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* Previously filed.
ITEM 17. UNDERTAKINGS
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, as amended (the "Act");
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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
Securities and Exchange Commission
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(the "Commission") by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in the registration statement.
(2) That for the purpose of determining any liability under the 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described in Item 15 above, or otherwise, the
Company has been advised that in the opinion of the 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.
The Company hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus 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.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THERETO DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS,
ON APRIL 24, 1996.
MAXXAM Inc.
/s/ Charles E. Hurwitz
By: _________________________________
Charles E. Hurwitz, Chairman of
the Board,
Chief Executive Officer and
President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURES CAPACITIES DATE
/s/ Charles E. Hurwitz Chairman of the
- ------------------------------------- Board, Chief April 24, 1996
CHARLES E. HURWITZ Executive Officer
and President
(Principal
Executive Officer)
/s/ Paul N. Schwartz Executive Vice
- ------------------------------------- President and Chief April 24, 1996
PAUL N. SCHWARTZ Financial Officer
(Principal
Financial Officer)
/s/ Terry L. Freeman Assistant Controller
- ------------------------------------- (Principal April 24, 1996
TERRY L. FREEMAN Accounting Officer)
Director
* April 24, 1996
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ROBERT J. CRUIKSHANK
Director
* April 24, 1996
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EZRA G. LEVIN
Director
* April 24, 1996
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STANLEY D. ROSENBERG
*By: /s/ Bernard L. Birkel
---------------------------------
BERNARD L. BIRKEL, SENIOR CORPORATE
COUNSEL
AND ATTORNEY-IN-FACT
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
*4.1 Form of Indenture between the Company and State Street Bank and Trust
Company, Trustee (the "Indenture")
5.1 Opinion of Anthony R. Pierno, General Counsel of the Company, with
respect to the Securities to be issued under the Indenture
*12 Computation of Ratio of Earnings to Fixed Charges for the years ended
December 31, 1995, 1994, 1993, 1992 and 1991
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Wharton Levin Ehrmantraut Klein & Nash, P.A.
*23.3 Consent of Thelen, Marrin, Johnson & Bridges
23.4 Consent of Anthony R. Pierno, Senior Vice President and General
Counsel (contained in Exhibit 5.1)
*25 Power of Attorney (on signature page)
*26.1 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of a Corporation Designated to Act
as Trustee with respect to the Indenture
99.1 The Audited Consolidated Financial Statements and Notes thereto of
Kaiser Aluminum Corporation for the fiscal year ended December 31,
1995 (incorporated herein by reference to Exhibit 99.1 to the Annual
Report on Form 10-K of MAXXAM Group Inc. for the fiscal year ended
December 31, 1995, File No. 1-8857)
</TABLE>
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* Previously filed.
<PAGE>
Exhibit 5.1
April 24, 1996
MAXXAM Inc.
5847 San Felipe, Suite 2600
Houston, Texas 77057
Ladies and Gentlemen:
I and members of my staff have acted as counsel for MAXXAM Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (Reg. No. 333-69) of the Company, as amended by Amendment Nos. 1
through 3 thereto (the "Registration Statement"), filed with the U.S.
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to the proposed sale and issue by
the Company pursuant to Rule 415 under the Act of secured and unsecured debt
securities (the "Securities") which may be offered from time to time and may
consist of debentures, notes and/or other evidence of indebtedness, or any
combination of the foregoing.
In connection with the foregoing, I or members of my staff have examined,
among other things (i) copies of the Registration Statement and exhibits
thereto, and (ii) the indenture in the form filed as Exhibit 4.1 to the
Registration Statement relating to the Securities (the "Indenture"). In
addition, I or members of my staff have examined the originals, photocopies or
conformed copies of all such records of the Company and all such agreements
and certificates of public officials, certificates of officers and
representatives of the Company, and such other documents as I or members of my
staff have deemed relevant and necessary as a basis for the opinions
hereinafter expressed. In such examination, I have assumed the genuineness of
all signatures on original documents, the authenticity of all documents
submitted to me as originals, the conformity to the originals of all copies
submitted to me as conformed or photocopies, and the authenticity of the
originals of such latter documents. As to various questions or fact materials
to this opinion, I have relied, without independent investigation or
verification, upon representations, statements or certificates of public
officials and officers and representatives of the Company.
For purposes of the opinion expressed below, I have assumed the
effectiveness of the Registration Statement, the taking of appropriate further
corporate action by the Company including, without limitation, its Board of
Directors, and the sale and delivery of any subsequently offered Securities
against payment therefore at prices and in accordance with the terms set forth
in a prospectus constituting part of the Registration Statement or a
supplement to such prospectus. For the purpose of the opinion expressed in
paragraph 1 and 2 below, I have also assumed the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended (the "TIA")
(including the granting of such orders of the Commission as may be necessary
or advisable to exempt the Indenture from certain provisions of the TIA), and
the due execution and delivery of the Indenture by the parties thereto.
Based upon the foregoing, I am of the opinion that upon the due execution of
the Securities on behalf of the Company and the due delivery of the Securities
in accordance with the terms of the Indenture, the Securities will constitute
valid and binding obligations of the Company entitled to the benefit of the
Indenture.
I call your attention to the fact that I am admitted to practice only in the
states of California and Texas and the District of Columbia, and, in rendering
the foregoing opinion, I do not express any opinion as to any laws other than
the General Corporation Law of the state of Delaware, the laws of the states
of California and Texas and the Federal laws of the United States of America.
The opinion expressed herein is based upon such laws as are in effect on the
date hereof, and I assume no obligation to revise or supplement this opinion
should any such law be changed by legislative action, judicial decision or
otherwise.
<PAGE>
MAXXAM Inc.
April 24, 1996
Page 2
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the heading "Legal
Matters" in the prospectus that forms a part thereof. In giving this consent, I
do not thereby admit that I am within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Anthony R. Pierno
Anthony R. Pierno
Senior Vice President and General
Counsel
