As filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STERLING CHEMICALS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 76-0185186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1200 Smith Street
Suite 1900
Houston, Texas 77002-4312
(713) 650-3700
(Address, including zip code, and telephone number
of Principal Executive Offices)
STERLING CHEMICALS HOLDINGS, INC.
OMNIBUS STOCK AWARDS AND INCENTIVE PLAN
(As Amended)
(Full title of the plan)
David G. Elkins
Vice President, General Counsel
and Secretary
1200 Smith Street
Suite 1900
Houston, Texas 77002-4312
(713) 650-3700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------------------------
copy to:
Thomas M. Hart III, Esq.
Andrews & Kurth L.L.P.
600 Travis, Suite 4200
Houston, Texas 77002
--------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate
Title of Securities Amount to be Offering Price Offering Amount of
to be Registered Registered(1) Per Share(2) Price(2) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share 1,000,000 Shares $8.25 $8,250,000.00 $2,433.75
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 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.
(2) Estimated solely for the purpose of calculating the registration fee, based
on the closing price of the Common Stock on May 11, 1998 of $8.25.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of this
registration statement on Form S-8 (the "Registration Statement") will be sent
or given to participants as specified by Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act"). These documents and the documents
incorporated herein by reference 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 (the "Prospectus").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Sterling Chemicals Holdings, Inc. (the "Company") incorporates herein
by reference the following documents as of their respective dates as filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K, as amended, for
the fiscal year ended September 30, 1997; and
(b) The Company's Quarterly Report on Form 10-Q, as amended,
for the fiscal quarter ended December 31, 1997; and
(c) The Company's Quarterly Report on Form 10-Q, for the
fiscal quarter ended March 31, 1998; and
(d) The description of the Company's common stock, par value
$0.01 per share, contained in the Company's registration statement on
Form 8-A (File No. 1-10059) filed with the Commission on September 22,
1988.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference herein 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 herein by reference shall be deemed to be modified or
superseded for purposes of the Registration Statement and the Prospectus 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. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or the Prospectus.
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.
None
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware ("DGCL") 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 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
adjudged 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 DGCL provides that a certificate of
incorporation 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 DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article VIII of the Company's Restated Bylaws ("Article VIII") provides
for indemnification to the maximum extent permitted under the laws of the State
of Delaware; however, absent the affirmative vote of a majority of the Board of
Directors, no indemnification may be made to any person (i) for amounts actually
paid to such person pursuant to one or more policies of directors and officers
liability insurance maintained by the Company or other funding arrangement
provided by the Company, (ii) in respect of remuneration paid to such person if
it is determined by a final judgment or other final adjudication that payment of
such remuneration was in violation of applicable law, (iii) on account of such
person's conduct which is finally adjudged to constitute willful misconduct or
to have been knowingly fraudulent, deliberately dishonest or from which such
person derives an improper personal benefit, or (iv) on account of any suit in
which final judgment is rendered against such person for an accounting of
profits made from the sale or
II-3
<PAGE>
purchase by such person of securities of the Company pursuant to the provisions
of Section 16(b) of the Exchange Act. Indemnification under Article VIII covers
the advancement of expenses, including attorneys fees. Article VIII constitutes
a continuing offer to all present and future directors and officers of the
Company.
In addition, Article VI of the Company's Restated Certificate of
Incorporation provides that the Company shall indemnify its officers, directors
and certain employees to the fullest extent permitted by law. Also, the Company
has entered into separate indemnification agreements with each of its officers
and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
Exhibit
Number Description
4.1 Restated Certificate of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 and incorporated herein by reference).
4.2 Restated Bylaws of the Company (filed as Exhibit 3.3 to the Company's
Annual Report on Form 10-K for the fiscal year ended September 30,
1996 and incorporated herein by reference).
4.3 Sterling Chemicals Holdings, Inc. Omnibus Stock Awards and Incentive
Plan, as amended (filed as Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 1998 and
incorporated herein by reference).
4.4 Stockholders Agreement (filed as Exhibit 4.10 to the Registration
Statement on Form S-1/A of STX Acquisition Corp. and STX Chemicals
Corp. (File No. 333-04343) (filed with the Commission on July 3, 1996
and incorporated herein by reference).
4.5 First Amendment to Sterling Chemicals Holdings, Inc. Stockholder's
Agreement (filed as Exhibit 4.7 to the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended March 31, 1998 and
incorporated herein by reference).
4.6 Registration Rights Agreement (filed as Exhibit 4.11 to the
Registration Statement on Form S-1/A of STX Acquisition Corp. and STX
Chemicals Corp. (File No. 333-04343) (filed with the Commission on
July 3, 1996 and incorporated herein by reference).
4.7 Amended and Restated Voting Agreement (filed as Exhibit 4.5 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997 and incorporated herein by reference).
4.8 Tag-Along Agreement (filed as Exhibit 4.13 to the Registration
Statement on Form S-1/A of STX Acquisition Corp. and STX Chemicals
Corp. (File No. 333-04343) (filed with the Commission on August 12,
1996 and incorporated herein by reference).
5.1* Opinion of Andrews & Kurth L.L.P. as to the legality of the shares
being registered.
15.1* Letter relating to unaudited Interim Financial Information from
Deloitte & Touche LLP.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Coopers & Lybrand L.L.P.
II-4
<PAGE>
23.3* Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
24.1* Powers of Attorney (set forth on the signature page of this
Registration Statement).
- ----------------------------
*filed herewith
ITEM 9. 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;
(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. Notwithstanding
the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of 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 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(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 Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the 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.
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 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 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.
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 provisions described in Item 6 of this
Registration
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<PAGE>
Statement, 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.
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<PAGE>
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-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 the 15th day of May,
1998.
STERLING CHEMICALS HOLDINGS, INC.
By: /s/ PETER W. DE LEEUW
----------------------------
Peter W. De Leeuw
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and
directors of STERLING CHEMICALS HOLDINGS, INC. (the "Company") hereby
constitutes and appoints Peter W. De Leeuw, Gary M. Spitz and David G. Elkins,
and each one 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, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE 15TH DAY OF MAY, 1998.
Signature Title
--------- -----
/s/ FRANK P. DIASSI Chairman of the Board of Directors
- ---------------------------
Frank P. Diassi
/s/ PETER W. DE LEEUW President, Chief Executive Officer
- --------------------------- and Director (Principal Executive Officer)
Peter W. De Leeuw
/s/ ROBERT W. ROTEN Vice Chairman of the Board of Directors
- ---------------------------
Robert W. Roten
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<PAGE>
/s/ ALLAN R. DRAGONE Director
- ---------------------------
Allan R. Dragone
/s/ JOHN L. GARCIA Director
- --------------------------
John L. Garcia
Director
- --------------------------
Frank J. Hevrdejs
/s/ T. HUNTER NELSON Director
- --------------------------
T. Hunter Nelson
/s/ GEORGE J. DAMIRIS Director
- --------------------------
George J. Damiris
/s/ ROLF H. TOWE Director
- --------------------------
Rolf H. Towe
/s/ GARY M. SPITZ Vice President and Chief Financial Officer
- -------------------------- (Principal Financial Officer)
Gary M. Spitz
/s/ PAUL G. VANDERHOVEN Controller (Principal Accounting Officer)
- -------------------------
Paul G. Vanderhoven
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<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
4.1 Restated Certificate of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997 and incorporated herein by reference).
4.2 Restated Bylaws of the Company (filed as Exhibit 3.3 to the Company's
Annual Report on Form 10-K for the fiscal year ended September 30,
1996 and incorporated herein by reference).
4.3 Sterling Chemicals Holdings, Inc. Omnibus Stock Awards and Incentive
Plan, as amended (filed as Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended March 31, 1998 and
incorporated herein by reference).
4.4 Stockholders Agreement (filed as Exhibit 4.10 to the Registration
Statement on Form S-1/A of STX Acquisition Corp. and STX Chemicals
Corp. (File No. 333-04343) (filed with the Commission on July 3, 1996
and incorporated herein by reference).
4.5 First Amendment to Sterling Chemicals Holdings, Inc. Stockholder's
Agreement (filed as Exhibit 4.7 to the Company's Quarterly Report on
Form 10-Q for the fiscal quarter ended March 31, 1998 and
incorporated herein by reference).
4.6 Registration Rights Agreement (filed as Exhibit 4.11 to the
Registration Statement on Form S-1/A of STX Acquisition Corp. and STX
Chemicals Corp. (File No. 333-04343) (filed with the Commission on
July 3, 1996 and incorporated herein by reference).
4.7 Amended and Restated Voting Agreement (filed as Exhibit 4.5 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997 and incorporated herein by reference).
4.8 Tag-Along Agreement (filed as Exhibit 4.13 to the Registration
Statement on Form S-1/A of STX Acquisition Corp. and STX Chemicals
Corp. (File No. 333-04343) (filed with the Commission on August 12,
1996 and incorporated herein by reference).
5.1* Opinion of Andrews & Kurth L.L.P. as to the legality of the shares
being registered.
15.1* Letter relating to unaudited Interim Financial Information from
Deloitte & Touche LLP.
23.1* Consent of Deloitte & Touche LLP.
23.2* Consent of Coopers & Lybrand L.L.P.
23.3* Consent of Andrews & Kurth L.L.P. (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).
24.1* Powers of Attorney (set forth on the signature page of this
Registration Statement).
- ----------------------------
*filed herewith
II-9
EXHIBIT 5.1
[Letterhead of Andrews & Kurth L.L.P.]
Houston, Texas 77002
May 15, 1998
Board of Directors
Sterling Chemicals Holdings, Inc.
1200 Smith Street
Suite 1900
Houston, Texas 77002-4312
Gentlemen:
We have acted as counsel to Sterling Chemicals Holdings, 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 1,000,000 shares (the
"Shares") of the Company's common stock, $0.01 par value, pursuant to the
Company's Omnibus Stock Awards and 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 hereinafter
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 will, when issued in accordance with
the terms of the Plan and related stock option agreements, be validly 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
1198/1249/2736
EXHIBIT 15.1
[Letterhead of Deloitte & Touche LLP]
Houston, Texas
May 14, 1998
Sterling Chemicals Holding, Inc.
1200 Smith Street, Suite 1900
Houston, Texas 77094
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Sterling Chemicals Holdings, Inc. and subsidiaries for the
three-month periods ended December 31, 1997 and 1996 and for the three-month and
six-month periods ended March 31, 1998 and 1997 as indicated in our reports
dated February 12, 1998 and May 12, 1998, respectively; because we did not
perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which are included in your
Quarterly Reports on Form 10-Q are incorporated by reference in this
Registration Statement for Sterling Chemicals Holdings, Inc. on Form S-8.
We also are aware that the aforementioned reports pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or reports prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Sterling Chemicals Holdings, Inc. on Form S-8 of the report of Deloitte & Touche
LLP dated December 3, 1997, appearing in the Annual Report on Form 10-K of
Sterling Chemicals Holdings, Inc. for the year ended September 30, 1997.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Houston, Texas
May 14, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Sterling Chemicals Holdings, Inc. (formerly Sterling Chemicals, Inc.) on Form
S-8 of our report dated October 25, 1995, on our audit of the consolidated
statements of operations, changes in stockholders' equity and cash flows of
Sterling Chemicals Holdings, Inc. for the year ended September 30, 1995.
/s/ Coopers & Lybrand L.L.P.
Houston, Texas
May 12, 1998
