<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1997
REGISTRATION NO. 333-31071
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 3
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
WELLS ALUMINUM CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 3354 35-1139550
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation Classification Code Number) Identification No.)
or organization)
809 GLENEAGLES COURT, SUITE 300
BALTIMORE, MARYLAND 21286
(410) 494-4500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------
MICHAEL S. NELSON, ESQ.
KRAMER, LEVIN, NAFTALIS & FRANKEL
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 715-9100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the registration statement becomes effective and all
other conditions to the exchange offer (the "Exchange Offer") pursuant to the
registration rights agreement (the "Registration Rights Agreement") described
in the enclosed Prospectus have been satisfied or waived.
If any of the securities being registered on this Form are to be offered
in connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
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 OR UNTIL THE 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 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 2-148 of the Maryland General Corporation Law (the "MGCL")
provides that a Maryland corporation may indemnify any present or former
director, officer, employee or agent of the corporation (i) against
judgments, penalties, fines, settlements, and reasonable expenses actually
incurred in connection with any proceeding to which they are made a party by
reason of their service in those capacities, unless it is established that
the act or omission of the director, officer, employee or agent was material
to the matter giving rise to the proceeding and (a) was committed in bad
faith or (b) was the result of active and deliberate dishonesty, (ii) the
director, officer, employee or agent actually received an improper personal
benefit in money, property or services, or (iii) in the case of any criminal
proceeding, the director, officer, employee or agent had reasonable cause to
believe that the act or omission was unlawful.
The MGCL permits a corporation to pay or reimburse, in advance of the
final disposition of a proceeding, reasonable expenses (including attorney's
fees) incurred by a present or former director, officer, employee or agent
made a party to the proceeding by reason of his service in that capacity,
provided that the corporation shall have received (a) a written affirmation
by the director, officer, employee or agent of the corporation of his good
faith belief that he has met the standard of conduct necessary for
indemnification by the corporation; and (b) a written undertaking by or on
his behalf to repay the amount paid or reimbursed by the corporation if it
shall ultimately be determined that the standard of conduct was not met.
In addition, the MGCL permits the charter of a Maryland corporation to
include a provision limiting the liability of its directors, officers,
employees or agents of the corporation to the corporation and its
stockholders for money damages, subject to specified restrictions. The
Company's charter does not contain such a provision. The law does not,
however, permit the liability of directors, officers, employees or agents of
the corporation to the corporation or its stockholders to be limited to the
extent that (1) it is proved that the person actually received an improper
personal benefit or (2) a judgment or other final adjudication is entered in
a proceeding based on a finding that the person's action, or failure to act
was material to the cause of action adjudicated in the proceeding; and was
(a) committed in bad faith or (b) the result of active and deliberate
dishonesty.
The Company's charter provides that its directors shall be indemnified to
the maximum extent permitted by Maryland law, as such laws may be amended
from time to time, including the advance of expenses under the procedures
provided by such laws.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Securities Act") 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 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, subject to a court of
appropriate jurisdiction the question of 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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ITEM 21. EXHIBITS AND FINANCIAL SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
--------- -------------------------
<S> <C>
3.1 Articles of Restatement of the Certificate of Incorporation of Wells Aluminum Corporation (the
"Company").*
3.2 By-laws of the Company.*
4.1 Indenture, dated as of May 28, 1997, between the Company and State Street Bank & Trust Company
(formerly known as Fleet National Bank)(the "Trustee").*
4.2 Form of 10 1/8% Series A and Series B Senior Notes due 2005, dated as of May 28, 1997
(incorporated by reference to Exhibit 4.1).*
4.3 Registration Rights Agreement, dated as of May 28, 1997, between the Company and Merrill Lynch &
Co. (the "Initial Purchaser").*
5.1 Opinion of Kramer, Levin, Naftalis & Frankel.
10.1 Amended and Restated Credit Agreement, dated as of May 28, 1997, among the Company, the lending
institutions party thereto and Credit Agricole Indosuez, as agent.*
10.2 Amended and Restated General Security Agreement, dated as of May 28, 1997, between the Company
and Credit Agricole Indosuez.*
12.1 Statement re computation of ratio of earnings to fixed charges.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Kramer, Levin, Naftalis & Frankel (to be contained in the opinion filed as Exhibit
5.1).
24.1 Power of Attorney (incorporated by reference in the signature pages).*
25.1 Form T-1 Statement of Eligibility and Qualification of State Street Bank & Trust Company
(formerly known as Fleet National Bank), as trustee.*
27.1 Financial Data Schedule.*
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Exchange Agent Agreement.*
</TABLE>
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* Previously filed.
(b) The Financial Statement Schedule filed as part of this Registration
Statement is as follows:
Schedule II -- Valuation and Qualifying Accounts
Information required by other schedules is not applicable or the required
information is included in the Financial Statements or Notes thereto.
ITEM 22. UNDERTAKING.
(a) 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,
II-2
<PAGE>
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.
(b) The undersigned registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day
of receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the Exchange Offer
Registration Statement through the date of responding to the request.
(c) The undersigned registrant hereby undertakes to supply by means to a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Exchange Offer Registration Statement when it became
effective.
(d) 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;
(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. 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% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
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.
(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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this registration statement or amendment to be signed on its
behalf by the undersigned, thereto duly authorized, in the City of New York,
New York, on September 29, 1997.
WELLS ALUMINUM CORPORATION
By: /s/ RUSSELL W. KUPIEC
-------------------------------
Russell W. Kupiec
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of W. Russell Asher, Michael S. Nelson
and Shari Krouner his true and lawful attorney-in-fact and agent, each acting
alone, with full powers of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any or all
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 attorneys-in-fact and
agents, each acting alone, 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, as fully for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, 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, this
registration statement or amendment has been signed by the following persons
in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S) DATE
----------- ---------- ------
<S> <C> <C>
/s/ RUSSELL W. KUPIEC President, and Chief Executive September 29, 1997
-------------------------- Officer and Director (Principal
Russell W. Kupiec Executive Officer)
/s/ W. RUSSELL ASHER Senior Vice President, Chief September 29, 1997
-------------------------- Financial Officer and Director
W. Russell Asher (Principal Accounting Officer)
* Director September 29, 1997
--------------------------
Hector Alvarez
* Senior Vice President, Sales and September 29, 1997
-------------------------- Marketing, and Director
Lynn F. Brown
* Director September 29, 1997
--------------------------
Elizabeth Varley Camp
Director September , 1997
--------------------------
Elena de Costas
* Director September 29, 1997
--------------------------
Todd Goodwin
Director September , 1997
--------------------------
Edward R. Heiser
Director September , 1997
--------------------------
Lewis W. van Amerongen
</TABLE>
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* Executed by W. Russell Asher by Power of Attorney.
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
--------- --------------------------
<S> <C>
3.1 Articles of Restatement of the Certificate of Incorporation of Wells Aluminum Corporation (the
"Company").*
3.2 By-laws of the Company.*
4.1 Indenture, dated as of May 28, 1997, between the Company and State Street Bank and Trust Company
(formerly known as Fleet National Bank)(the "Trustee").*
4.2 Form of 10 1/8% Series A and Series B Senior Notes due 2005, dated as of May 28, 1997
(incorporated by reference to Exhibit 4.1).*
4.3 Registration Rights Agreement, dated as of May 28, 1997, between the Company and Merrill Lynch &
Co. (the "Initial Purchaser").*
5.1 Opinion of Kramer, Levin, Naftalis & Frankel.
10.1 Amended and Restated Credit Agreement, dated as of May 28, 1997, among the Company, the lending
institutions party thereto and Credit Agricole Indosuez, as agent.*
10.2 Amended and Restated General Security Agreement, dated as of May 28, 1997, between the Company
and Credit Agricole Indosuez.*
12.1 Statement re computation of ratio of earnings to fixed charges.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Kramer, Levin, Naftalis & Frankel (to be contained in the opinion filed as Exhibit
5.1).
24.1 Power of Attorney (incorporated by reference in the signature pages).*
25.1 Form T-1 Statement of Eligibility and Qualification of State Street Bank and Trust Company
(formerly known as Fleet National Bank), as trustee.*
27.1 Financial Data Schedule.*
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Exchange Agent Agreement.*
</TABLE>
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* Previously filed.
<PAGE>
KRAMER, LEVIN, NAFTALIS & FRANKEL
9 1 9 T H I R D A V E N U E
NEW YORK, N.Y. 10022 - 3852
(212) 715 - 9100
September 29, 1997
Wells Aluminum Corporation
809 Gleneagles Court, Suite 300
Baltimore, Maryland 21286
Ladies and Gentlemen:
We have acted as counsel for Wells Aluminum Corporation (the
"Company") in connection with the registration statement on Form S-4 (Reg. No.
333-31071), as amended by Amendment Nos. 1 through 3 thereto (the "Registration
Statement"), filed by the Company with the Securities and Exchange Commission
(the "Commission") relating to the proposed offer by the Company of
$105,000,000 aggregate principal amount of 10 1/8% Series B Senior Notes due
2005 (the "New Notes") of the Company for a like amount of privately placed
10 1/8% Series A Senior Notes due 2005 (the "Old Notes") (the "Exchange Offer").
The New Notes will be issued pursuant to the Indenture (the "Indenture") dated
May 28, 1997 between the Company and State Street Bank and Trust Company
(formerly known as Fleet National Bank), as trustee. All capitalized terms not
otherwise defined herein have the same meanings given to such terms in the
Indenture.
In connection with the foregoing, we have examined, among
other things, (i) the Registration Statement, (ii) the Indenture, (iii) the
form of New Notes to be issued pursuant to the Indenture and (iv) originals,
photocopies or conformed copies of all such corporate records, agreements,
instruments and documents of the Company, certificates of public officials and
other certificates and opinions, and have made such other investigations as we
have deemed necessary for the purpose of rendering the opinion set forth
herein. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all
<PAGE>
KRAMER, LEVIN, NAFTALIS & FRANKEL
Wells Aluminum Corporation
September 29, 1997
Page 2
documents submitted to us as originals, and the conformity to originals of all
documents submitted to us as photocopies or conformed copies, and the
authenticity of the originals of such latter documents. We have relied, to the
extent we deem such reliance proper, upon representations, statements or
certificates of public officials and officers and representatives of the
Company.
Based upon and subject to the foregoing, we are of the
opinion that:
The New Notes have been duly authorized by the Company and,
when issued and delivered in exchange for the Old Notes in the manner
set forth in the Registration Statement and executed and
authenticated in accordance with the terms and conditions of the
Indenture, will constitute legal, valid and binding obligations of
the Company.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement and to the reference to our firm under the
heading "Legal Matters" in the prospectus that forms a part thereof.
We are delivering this opinion to the Company, and no person
other than the Company and its securityholders may rely upon it.
Very truly yours,
/s/ Kramer, Levin, Naftalis & Frankel
