<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 1996
REGISTRATION NO. 333-71
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KAISER ALUMINUM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3030279
(I.R.S. EMPLOYER
(STATE OR OTHER JURISDICTION IDENTIFICATION NUMBER)
OF INCORPORATION OR ORGANIZATION)
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
(713) 267-3777
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANTHONY R. PIERNO
VICE PRESIDENT AND GENERAL COUNSEL
KAISER ALUMINUM CORPORATION
5847 SAN FELIPE, SUITE 2600
HOUSTON, TEXAS 77057
(713) 267-3777
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JOHN WM. NIEMAND II HOWARD A. SOBEL, ESQ.
ASSISTANT GENERAL COUNSEL KRAMER, LEVIN, NAFTALIS,
KAISER ALUMINUM CORPORATION NESSEN, KAMIN & FRANKEL
6177 SUNOL BOULEVARD 919 THIRD AVENUE
PLEASANTON, CALIFORNIA 94566 NEW YORK, NEW YORK 10022
(510) 847-5790 (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.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE PER OFFERING REGISTRATION
REGISTERED(1) REGISTERED(1) SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share......... 10,000,000 (2) (2) (2)
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</TABLE>
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(1) The shares of Common Stock offered hereby may be deliverable, among other
things, upon the conversion, exchange or redemption of debt securities of
MAXXAM Inc. (the "Exchangeable Securities") which are convertible,
exchangeable or redeemable for Common Stock. This Registration Statement
covers such indeterminate number of additional shares of Common Stock and
such other equity securities of Kaiser that may become deliverable in
exchange for, or upon redemption or conversion of, Exchangeable Securities
by reason of stock splits, combinations, stock dividends,
reclassifications, recapitalizations or other actions of Kaiser that
modify its capital structure or by reason of any exchange by MAXXAM of
lower voting shares for higher voting shares of Kaiser as may be permitted
by the terms applicable to any Exchangeable Securities, as well as any
such exchange of lower voting shares for higher voting shares.
(2) A registration fee in the amount of $44,182 was previously paid.
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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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses of the Company attributable to this offering will be reimbursed
by MAXXAM Inc. and, exclusive of underwriting discounts and commissions, are as
follows:
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 44,182
*Printing and engraving............................................ 150,000
*Legal fees and expenses........................................... 50,000
*Accounting fees and expenses...................................... --
*Blue Sky fees and expenses (including counsel fees)............... 15,000
*Miscellaneous..................................................... 40,818
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Total............................................................ $300,000
========
</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. The Registrant's
Restated Certificate of Incorporation contains provisions permitted by Section
102(b)(7) of the DGCL.
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 Registrant's Restated Certificate of Incorporation and By-laws provide
for indemnification of directors, officers and employees of the Registrant to
the fullest extent authorized by law.
II-1
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The Registrant has entered into indemnification agreements with certain of
its directors and officers which provide that the Registrant will indemnify
such individuals if and whenever they were or are a party or are threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that they are or were a director, officer or employee of the
Registrant or any of its subsidiaries, or are or were serving at the request of
the Registrant or any of its subsidiaries as a director, officer, employee,
agent or other official of another corporation, partnership, joint venture,
trust, or other enterprise, against judgments, fines and amounts paid in
settlement and reasonable expenses (including attorneys' fees) actually
incurred by them in connection with such action, suit or proceeding except to
the extent that (a) any judgments, fines, amounts paid in settlement and
expenses are finally determined by a court of competent jurisdiction to have
resulted from their gross negligence or bad faith in the performance of their
duties (or, alternatively in the case of certain of the indemnification
agreements, result from conduct which is finally determined by a court of
competent jurisdiction to be knowingly fraudulent or deliberately dishonest, or
to constitute willful misconduct), (b) any amount is paid without the prior
approval of the Registrant in settlement of a proceeding brought in the name
and on behalf of the Registrant or another corporation, partnership, joint
venture, trust or other enterprise for which they are or were serving at the
request of the Registrant as a director, officer, employee, agent or other
official, (c) such indemnification is otherwise prohibited by law, whether by
statute, court decision or otherwise, or (d) reimbursement of such expenses has
actually been made pursuant to insurance policies maintained by the Registrant
for their benefit. For these purposes, service at the request of the Registrant
with respect to an "other enterprise" includes service with respect to any
employee benefit plan. The agreements further provide for the advancement of
expenses incurred in defending any such action, suit or proceeding upon receipt
of a repayment undertaking if it is ultimately determined that such individuals
are not entitled to be indemnified or to the extent they recover such expenses
from others pursuant to insurance or otherwise.
The Registrant may terminate the agreements on 90 days' prior written notice
to such individuals, but the indemnification provided by the agreements
continues to apply to all actions taken or failed to be taken by such
individuals prior to the expiration of the 90-day notice period notwithstanding
such termination.
The foregoing discussion is qualified in its entirety by reference to the
DGCL, the Registrant's Restated Certificate of Incorporation and By-laws, and
the referenced indemnification agreements.
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 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 Registrant's Restated Certificate of Incorporation and By-laws,
and the referenced indemnification agreements.
II-2
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ITEM 16. EXHIBITS.
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
4.1 Restated Certificate of Incorporation of Kaiser Aluminum Corporation
(the "Company"), dated February 21, 1991 (incorporated by reference to
Exhibit 3.1 to Amendment No. 2 to the Registration Statement on Form
S-1, dated June 11, 1991, filed by the Company, Registration No. 33-
37895).
4.2 By-laws of the Company, amended as of February 26, 1991 (incorporated
by reference to Exhibit 3.2 to Amendment No. 2 to the Registration
Statement on Form S-1, dated June 11, 1991, filed by the Company,
Registration No. 33-37895).
5.1 Opinion of Anthony R. Pierno, Vice President and General Counsel of
the Company, with respect to the Common Stock being registered
hereunder.
*5.2 Opinion of Kramer, Levin, Naftalis, Nessen, Kamin & Frankel with
respect to the Exchangeable Securities (as such term is defined on the
cover page to this Registration Statement).
*11 Computation of Earnings (Loss) per Common and Common Equivalent Share.
*12 Computation of Consolidated Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends.
*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, Vice President and General Counsel of
the Company (contained in Exhibit 5.1).
*23.5 Consent of Kramer, Levin, Naftalis, Nessen, Kamin & Frankel (contained
in Exhibit 5.2).
*25 Power of Attorney (on signature page).
</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 (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.
II-3
<PAGE>
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.
II-4
<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-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.
Kaiser Aluminum Corporation
*
By _____________________________________
George T. Haymaker, Jr.
Chairman of the Board and Chief
Executive Officer
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.
<TABLE>
<CAPTION>
SIGNATURES CAPACITIES DATE
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<S> <C> <C>
* Chairman of the Board and April 24, 1996
____________________________________ Chief Executive Officer
George T. Haymaker, Jr. (Principal Executive
Officer)
John T. La Duc Vice President and Chief April 24, 1996
____________________________________ Financial Officer (Principal
John T. La Duc Financial Officer)
Arthur S. Donaldson Controller (Principal April 24, 1996
____________________________________ Accounting Officer)
Arthur S. Donaldson
* Director April 24, 1996
____________________________________
Robert J. Cruikshank
* Director April 24, 1996
____________________________________
Ezra G. Levin
* Director April 24, 1996
____________________________________
Robert J. Petris
Charles E. Hurwitz Director April 24, 1996
____________________________________
Charles E. Hurwitz
* Director April 24, 1996
____________________________________
Robert Marcus
</TABLE>
/s/ John W. Niemand
*By:______________________
John W. Niemand,
Assistant General Counsel and
Attorney-In-Fact
II-5
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
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<C> <S> <C>
4.1 Restated Certificate of Incorporation of Kaiser
Aluminum Corporation (the "Company"), dated February
21, 1991 (incorporated by reference to Exhibit 3.1 to
Amendment No. 2 to the Registration Statement on Form
S-1, dated June 11, 1991, filed by the Company,
Registration No. 33-37895).
4.2 By-laws of the Company, amended as of February 26, 1991
(incorporated by reference to Exhibit 3.2 to Amendment
No. 2 to the Registration Statement on Form S-1, dated
June 11, 1991, filed by the Company, Registration No.
33-37895).
5.1 Opinion of Anthony R. Pierno, Vice President and
General Counsel of the Company, with respect to the
Common Stock being registered hereunder.
*5.2 Opinion of Kramer, Levin, Naftalis, Nessen, Kamin &
Frankel with respect to the Exchangeable Securities (as
such term is defined on the cover page to this
Registration Statement).
*11 Computation of Earnings (Loss) per Common and Common
Equivalent Share.
*12 Computation of Consolidated Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividends.
*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, Vice President and
General Counsel of the Company (contained in Exhibit
5.1).
*23.5 Consent of Kramer, Levin, Naftalis, Nessen, Kamin &
Frankel (contained in Exhibit 5.2).
*25 Power of Attorney (on signature page).
</TABLE>
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*Previously filed.
<PAGE>
EXHIBIT 5.1
April 24, 1996
Kaiser Aluminum Corporation
5847 San Felipe, Suite 2600
Houston, Texas 77057
Ladies and Gentlemen:
I and members of my staff have acted as counsel for Kaiser Aluminum
Corporation, a Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-3 (Reg. No. 333-71) of the Company, as amended
by Amendment Nos. 1 and 2 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 registration
of, among other things, 10,000,000 shares of the Company's Common Stock, par
value $.01 per share (the "Shares") to be sold from time to time, by MAXXAM
Inc. (the "Selling Stockholder") directly to purchasers or which may be
converted, exchanged or redeemed for debt securities of the Selling
Stockholder.
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 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 opinion 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 of fact material 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.
Based upon and subject to the foregoing, and to the qualifications
hereinafter specified, I am of the opinion that the Shares to be sold by the
Selling Stockholder have been duly authorized and are validly issued, fully
paid and nonassessable.
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.
I hereby consent to the fling 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
Vice President and General Counsel
