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As filed with the Securities and Exchange Registration No. 333-___________
Commission on December 19, 2000
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GEORGIA GULF CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 58-1563799
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
(Address of principal executive office) (Zip code)
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GEORGIA GULF CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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JOEL I. BEERMAN, ESQ.
400 Perimeter Center Terrace, Suite 595
Atlanta, Georgia 30346
(Name and address of agent for service)
(770) 395-4500
(Telephone number, including area code, of agent for service)
With a copy to:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza,
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
(404) 521-3939
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share(1) offering price(1) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par 1,200,000 $10.20 $12,240,000 $3,232
value, and Preferred Share shares
Purchase Rights (2)
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</TABLE>
(1) Calculated pursuant to Rule 457(h)(1) on the basis of $10.20 per
share (representing 85% of the average of the high and low prices reported on
the New York Stock Exchange on December 14, 2000), which is the maximum price at
which shares of Common Stock may be purchased under the Georgia Gulf Corporation
Employee Stock Purchase Plan (the "Plan"), multiplied by 1,200,000, the maximum
number of shares that may be purchased pursuant to the Plan.
(2) In addition to the shares set forth in the table, the amount to be
registered includes an indeterminate number of shares issuable upon adjustment
due to stock splits, stock dividends and anti-dilution provisions, and other
adjustment provisions as provided in the Plan, as well as the Preferred Share
Purchase Rights, which are attached to the shares of Common Stock being
registered, and will be issued for no additional consideration so that no
additional registration fee is required.
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EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information
specified by Part I of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of shares of the Common Stock of Georgia Gulf
Corporation (the "Company") under the Plan.
<PAGE>
GEORGIA GULF CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company (file no. 1-9753) with the
Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference into this Registration Statement and made a part
hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, dated March 28, 2000 and filed with the
Commission on March 29, 2000.
(b) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since December 31, 1999.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A declared effective by the
Commission on May 15, 1990, as amended, and the description of the
related Preferred Share Purchase Rights contained in the Company's
Registration Statement on Form 8-A filed with the Commission on May
11, 1990, as amended.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities 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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VIII of the Company's Certificate of Incorporation provides that to
the fullest extent permitted by the Delaware General Corporation Law (the
"GCL"), a Director of the Company shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Company or its stockholders, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL, or (iv) for any transaction from which the Director
derived any improper personal benefit.
The Company's Bylaws (Article XIII) provide that the Company shall indemnify
any person who was or is a party or who 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 Company), by reason of the fact that he is or was a Director or
officer of the Company or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, against all 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 a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
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With respect to indemnification of officers and directors, Section 145 of
the GCL provides that a corporation shall have power 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
be the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe this conduct was
unlawful. Under this provision of the GCL, the termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which 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 reasonable cause to
believe that his conduct was unlawful.
Furthermore, the GCL provides that a corporation shall have power 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 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) 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 and except that no
indemnification shall be made in respect or any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty 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 circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such court shall deem proper.
Section 145(g) of the GCL provides that a corporation shall have power to
purchase and maintain insurance on behalf of any person who 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 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 liability under the
provisions of Section 145.
The Company maintains several directors and officers liability policies
which, subject to the terms and exclusions of the policies, cover any claim or
claims made during the period the policies are in force, against all persons who
were, now are or shall be duly elected directors or officers of the Company for
any actual or alleged error or misstatement or misleading statement or act or
omission or neglect or breach of duty by such persons insured while acting in
their individual or collective capacities, on any matter, not excluded by the
terms and conditions of the policies, claimed against them solely by reason of
their being directors or officers of the Company. The limit of liability under
the policies is $50 million per policy year.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 Georgia Gulf Corporation Employee Stock Purchase Plan (incorporated
by reference to Exhibit 4 to the Form S-8 Registration Statement
(file no. 33-63051) filed with the Commission on December 5, 1995).
4.2 First Amendment to Employee Stock Purchase Plan (incorporated by
reference to Exhibit A to the proxy statement dated and filed with
the Commission on March 30, 2000).
*4.3 Second Amendment to Employee Stock Purchase Plan.
*5 Opinion of Jones, Day, Reavis & Pogue as to the legality of the
securities being registered.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5).
24 Power of Attorney (included as part of signature page).
-----------
*filed herewith
ITEM 9. UNDERTAKINGS.
(a) The Company 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 the 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, paragraphs 1(i) and 1(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in the 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; and
(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.
II-3
<PAGE>
(b) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company'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.
(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 provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange 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 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 Securities Act and will be
governed by the final adjudication of such issue.
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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 Atlanta, State of Georgia, on this 19th day of
December, 2000.
GEORGIA GULF CORPORATION
By: /s/ Edward A. Schmitt
--------------------------------
Edward A. Schmitt
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated below on the 19th day of December, 2000. Each person whose
signature appears below constitutes and appoints Richard B. Marchese and Joel I.
Beerman, jointly and severally, his true and lawful attorneys-in-fact each, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any amendments to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
President, Chief Executive Officer and Director
/s/ EDWARD A. SCHMITT (Principal Executive Officer)
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Edward A. Schmitt
/s/ RICHARD B. MARCHESE Vice President-Finance, Chief Financial Officer and
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Richard B. Marchese Treasurer (Principal Financial and Accounting Officer)
/s/ JAMES R. KUSE Chairman and Director
-----------------------------
James R. Kuse
/s/ JOHN E. AKITT Director
-----------------------------
John E. Akitt
/s/ JOHN D. BRYAN Director
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John D. Bryan
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<CAPTION>
Signature Title
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<S> <C>
/s/ DENNIS M. CHORBA
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Dennis M. Chorba Director
/s/ PATRICK J. FLEMING Director
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Patrick J. Fleming
/s/ CHARLES T. HARRIS, III Director
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Charles T. Harris, III
/s/ JERRY R. SATRUM Director
-----------------------------
Jerry R. Satrum
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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4.1 Georgia Gulf Corporation Employee Stock Purchase Plan
(incorporated by reference to Exhibit 4 to the Form S-8
Registration Statement (file no. 33-63051) filed with the
Commission on December 5, 1995).
4.2 First Amendment to Employee Stock Purchase Plan (incorporated by
reference to Exhibit A to the proxy statement dated and filed
with the Commission on March 30, 2000).
*4.3 Second Amendment to Employee Stock Purchase Plan.
*5 Opinion of Jones, Day, Reavis & Pogue as to the legality of the
securities being registered.
*23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5).
24 Power of Attorney (included as part of signature page).
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*filed herewith
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