As filed with the Securities and Exchange Commission on October 3, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
__________
MELAMINE CHEMICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 64-0475913
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
39041 Highway 18 West
Donaldsonville, Louisiana 70346
(Address, including zip code, of
registrant's principal executive offices)
Melamine Chemicals, Inc. 1996 Long-Term Incentive Plan
(Full title of the plan)
__________
Frederic R. Huber
President and Chief Executive Officer
39041 Highway 18 West
Donaldsonville, Louisiana 70346
(504) 473-3121
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Margaret F. Murphy
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
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CALCULATION OF REGISTRATION FEE
========================================================================================
<S> <C> <C> <C> <C>
Amount Proposed maximum Proposed Amount of
Title of securities to be offering price maximum registration
to be registered registered(1) per unit aggregate fee
offering price
- ----------------------------------------------------------------------------------------
Common Stock
($.01 par value per
share).............. 95,000 shares $13.875(2) $1,318,125(2) $ 399.44(2)
7,453 shares $ 7.125(2) 53,103(2) 16.10(2)
247,547 shares $15.9375(3) $3,945,280(3) $1,195.54(3)
---------------- ------------- -------------
Total Common Stock.. 350,000 shares $ 5,316,508 $1,611.08
========================================================================================
(1) Upon a stock split, stock dividend or similar transaction in the future
and during the effectiveness of this Registration Statement involving
Common Stock of the Company, the number of shares registered shall be
automatically increased to cover the additional shares in accordance
with Rule 416(a) under the Securities Act of 1933.
(2) Computed in accordance with Rule 457(h)(1) under the Securities Act of
1933, based on the price at which outstanding options may be exercised.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low price per share of the Common Stock on The
Nasdaq Stock Market on September 26, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Melamine Chemicals,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1997 filed pursuant to Section 13 of the Securities Exchange Act of
1934 (the "1934 Act");
(b) All other reports filed by the Company with the Commission
pursuant to Section 13 of the 1934 Act since June 30, 1997; and
(c) The description of the Company's Common Stock included in the
Company's Registration Statement on Form 8-A (File No. 0-16032) effective
August 5, 1987, by incorporation by reference from the Company's
Registration Statement on Form S-1 (Registration No. 33-15181).
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall, except to the extent
otherwise provided by Regulation S-K or any other rule promulgated by the
Commission, be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 10 of the Company's Restated Certificate of Incorporation
provides as follows:
No director shall be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty
by such director as a director, except (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law,
or (iv) for any transaction from which the director derived an
improper personal benefit. Any repeal or modification of this
Article TENTH shall not adversely affect any right or protection
of a director of the Corporation existing at the time of such
modification or repeal.
Section 102(b)(7) of the Delaware General Corporation Law allows a
provision such as Article 10 of the Certificate of Incorporation to be
included in a corporation's certificate of incorporation. Section 102(b)(7)
also provides that such a provision shall not eliminate or limit the
liability of a director for any act or omission occurring prior to the date
that such provision became effective.
Section 145 of the Delaware General Corporation Law provides in part
that a corporation may indemnify any director, officer, employee or agent of
the corporation against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with any action, suit or proceeding to which he is or was a
party or is threatened to be made a party (including any action by or in the
right of the corporation) if he acted in good faith and in the manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal conduct was unlawful;
provided that in case of actions by or in the right of the corporation, the
indemnity shall be limited to expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of such
action 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 available if such person shall have been
adjudged to be liable to the corporation unless and only to the extent that
the court shall determine otherwise. It must be shown in any such
indemnification that the applicable standard of conduct has been met. To
the extent that a director, officer or employee or agent of a corporation
has been successful on the merits or otherwise in defense of any such
action, suit or proceeding, or of any claim therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 145 also provides that expenses incurred by an officer or
director in defending a civil or criminal action, suit or proceeding, may be
paid by the Corporation in advance of the final disposition of such action
upon receipt of an undertaking by such director or officer to repay such
amount if it is ultimately determined that he is not entitled to be
indemnified by the corporation.
The indemnification and advancement of expenses provided by the
Delaware corporation law are not exclusive of any other rights which may be
granted under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise. A corporation has the power to purchase and
maintain insurance on behalf of any persons who is or was acting for the
corporation, regardless of whether the corporation has the legal authority
to indemnify the insured person against such liability.
Article VII of the By-laws of the Company provides that the Company
shall indemnify and hold harmless each former and present director and
officer of the Company from and against any and all expenses and costs
(including attorneys' fees) judgments, punitive or exemplary damages, fines
and amounts paid in settlement by reason of his position as a director or
officer of the Company if such person is successful in his defense of his
claim on the merits or if it is determined that such person reasonably
believed that his actions were in or not opposed to the best interests of
the Company or, in the case of a criminal claim, such person had no
reasonable cause to believe his conduct was unlawful; provided that no
person shall be indemnified with respect to conduct which has been adjudged
by a court in a final judgment to involve (i) a breach of the duty of
loyalty to the Company or its shareholders, (ii) bad faith, intentional
misconduct or a knowing violation of law, (iii) an improper personal benefit
to the person seeking indemnification or (iv) a violation of Section 174 of
the Delaware General Corporation Law, unless the court determined otherwise.
The By-laws also authorize the advancement of reasonable expenses to a
party claiming indemnification upon receipt of an undertaking from that
party to repay such amount if it is ultimately determined that such person
is not entitled to be indemnified under the circumstances.
The By-laws also contain provisions designed to protect indemnification
rights in the case of consolidations, mergers or sales of assets.
The Company has entered into Indemnity Agreements with its officers and
directors providing for the maintenance of officer and director liability
insurance, if available on reasonable terms. In addition, if the Company
does not purchase and maintain the required insurance, the Company has
agreed in the Indemnity Agreements to indemnify the officers and directors
to the full extent of the agreed upon coverage. The Company has also agreed
in the Indemnity Agreements to indemnify its officers and directors for all
expenses in excess of the agreed upon insurance coverage on the same terms
as are provided in the By-laws.
The Registrant has purchased two policies of director and officer
liability insurance covering certain liabilities, including liabilities
under the Securities Act of 1933.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange 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 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 of 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.
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 Donaldsonville, State of Louisiana, on September 30,
1997.
MELAMINE CHEMICALS, INC.
By: /s/ Frederic R. Huber
------------------------------
Frederic R. Huber
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints James W. Crook, Frederic R. Huber,
and Wayne D. DeLeo, and each of them acting individually, his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective 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, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- -----
/s/ James W. Crook Director and Chairman September 30, 1997
- --------------------------- of the Board
James W. Crook
/s/ David J. D'Antoni Director September 30, 1997
- ---------------------------
David J. D'Antoni
/s/ Charles M. McAuley Director September 30, 1997
- ---------------------------
Charles M. McAuley
/s/ Scotty B. Patrick Director September 30, 1997
- ---------------------------
Scotty B. Patrick
/s/ Nilon H. Prater Director September 30, 1997
- ---------------------------
Nilon H. Prater
/s/ Daniel D. Reneau Director September 30, 1997
- ---------------------------
Daniel D. Reneau
/s/ R. Michael Summerford Director September 30, 1997
- ---------------------------
R. Michael Summerford
/s/ Frederic R. Huber President, Chief Executive September 30, 1997
- --------------------------- Officer and Director
Frederic R. Huber (Principal Executive Officer)
/s/ Wayne D. DeLeo Vice President and September 30, 1997
- --------------------------- Chief Financial Officer
Wayne D. DeLeo (Principal Financial Officer and
Principal Accounting Officer)
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EXHIBIT 5
Jones, Walker
Waechter, Poitevent
Carrere & Denegre, L.L.P.
October 3, 1997
Melamine Chemicals, Inc.
39041 Highway 18 West
Donaldsonville, Louisiana 70346
Gentlemen:
We have acted as counsel for Melamine Chemicals, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to the offering by the
Company of 350,000 shares (the "Shares") of common stock, $.01 par value
for each share, pursuant to the terms of the Melamine Chemicals, Inc. 1996
Long-Term Incentive Plan (the "Plan").
Based upon the foregoing and upon our examination of such matters
as we deem necessary to furnish this opinion, we are of the opinion that
the Shares have been duly authorized and, when issued for at least par
value upon the terms described in the Plan and the Registration Statement,
will be validly issued and outstanding, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /s/ Margaret F. Murphy
---------------------------------
Margaret F. Murphy
EXHIBIT 23.1
The Board of Directors
Melamine Chemicals, Inc.:
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Baton Rouge, Louisiana
October 1, 1997
