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As filed with the Securities and Exchange Commission on May 11, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Mueller Industries, Inc.
------------------------
(Exact name of issuer as specified in its charter)
Delaware 25-0790410
- ----------------------------- -----------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
6799 Great Oaks Road, Suite 200
Memphis, Tennessee 38138
(Address of Principal Executive Offices)
Mueller Industries, Inc. 1998 Stock Option Plan
-----------------------------------------------
(Full Title of the Plan)
William H. Hensley, Esq.
Vice President, General Counsel and Secretary
Mueller Industries, Inc.
6799 Great Oaks Road, Suite 200
Memphis, Tennessee 38138
(901) 753-3200
----------------------------------
(Name, address and telephone number,
including area code, of agent for service)
COPY TO:
Neil Novikoff, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 821-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------ -------------------------- ------------------------ ------------------------- --------------------
Title of Securities to be Amount to be registered Proposed maximum Proposed maximum Amount of
Registered (1) offering price per aggregate offering registration fee
share (2) price (2)
- ------------------------------ -------------------------- ------------------------ ------------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share 300,000 $66.15625 $19,846,875 $5,854.83
</TABLE>
(1) This Registration Statement covers the 300,000 shares of Common Stock
authorized to be issued under the Mueller Industries, Inc. 1998 Stock
Option Plan.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act of
1933, as amended (the "Securities Act"), based upon the average of the high
and low prices of the Common Stock as reported by the New York Stock
Exchange, Inc. on May 7, 1998.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange Commission
(the "Commission") by Mueller Industries, Inc., a Delaware corporation (the
"Company"), are incorporated by reference into the Registration Statement:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 27, 1997, filed pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(b) The Company's quarterly report on Form 10-Q for the quarter ended
March 28, 1998, filed pursuant to the Exchange Act.
(c) The description of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), which is contained in the Company's
Registration Statement on Form 8-A, File No. 1-6770, dated January 22,
1991, filed pursuant to the Exchange Act, as amended by the Company's
Form 8, dated February 12, 1991.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
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 the filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is being passed
upon for the Company by Willkie Farr & Gallagher. As of the date of this
Registration Statement, Robert B. Hodes, a partner of Willkie Farr & Gallagher,
is a non-employee director of the Company and is the beneficial owner of 21,000
shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware 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 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. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertakes to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person against 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 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.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys' fees) which he actually and
reasonably incurred in connection therewith. The indemnification provided is not
deemed to be exclusive of any other rights to which an
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officer or director may be entitled under any corporation's by-law, agreement,
vote or otherwise.
In accordance with Section 145 of the DGCL, Article 7 of the Company's
Certificate of Incorporation, as amended (the "Certificate") and the Company's
By-Laws (the "By-Laws") provide that the Company shall indemnify each person who
is or was a director, officer, employee or agent of the Company (including the
heirs, executors, administrators or estate of such person) or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
the fullest extent permitted by the DGCL or any successor statute. The
indemnification provided by the Certificate and the By-Laws shall not be deemed
exclusive of any other rights to which any of those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
or her individual capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. The Certificate and the By-Laws
provide that a director of the Company shall not be personally 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) for acts or omissions not in
good faith or which involve intentional misconduct of 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. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
The By-Laws further provide that the Company may purchase and maintain
insurance on behalf of its directors, officers, employees and agents against any
liabilities asserted against such persons arising out of such capacities.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
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Item 8. EXHIBITS
Exhibit No. Description of Exhibits
5 Opinion of Willkie Farr & Gallagher, counsel to the Company,
as to the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit
5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
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(b) 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.
(c) 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.
2. The undersigned registrant 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
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.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 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 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, the Company 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 Memphis, State of Tennessee, on this 7th day of May, 1998.
MUELLER INDUSTRIES, INC.
By:/s/ Harvey L. Karp
---------------------
Harvey L. Karp
Chairman of the Board
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POWER OF ATTORNEY
Each of the undersigned officers and directors of Mueller Industries, Inc.
hereby severally constitutes and appoints Harvey L. Karp and William D. O'Hagan
as the attorney-in-fact for the undersigned, in any and all capacities, with
full power of substitution, to sign any and all pre- or post-effective
amendments to this Registration Statement, any subsequent Registration Statement
for the same offering which may be filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and any and all pre- or post-effective
amendments thereto, and to file the same with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact 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 to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact 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/ Harvey L. Karp Chairman of the Board and May 7, 1998
- ------------------ Director
Harvey L. Karp
/s/ William D. O'Hagan President, Chief Executive May 7, 1998
- ---------------------- Officer and Director
William D. O'Hagan (Principal Executive Officer)
/s/ Earl W. Bunkers Executive Vice President May 7, 1998
- ---------------------- and Chief Financial
Earl W. Bunkers Officer (Principal
Financial Officer and
Principal Accounting
Officer)
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/s/ Robert B. Hodes Director May 7, 1998
- -------------------
Robert B. Hodes
/s/ Allan Mactier Director May 7, 1998
- -------------------
Allan Mactier
/s/ Robert J. Pasquarelli Director May 7, 1998
- -------------------------
Robert J. Pasquarelli
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
5 Opinion of Willkie Farr & Gallagher, counsel to the Company,
as to the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
May 7, 1998
Mueller Industries, Inc.
6799 Great Oaks Road
Suite 200
Memphis, TN 38138
Ladies and Gentlemen:
We have acted as counsel to Mueller Industries, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Form S-8 Registration Statement (the "Registration Statement") to
be filed by the Company with the Securities and Exchange Commission on or about
May 11, 1998 in connection with the registration under the Securities Act of
1933, as amended (the "Act"), by the Company of 300,000 shares of common stock,
par value $.01 per share (the "Common Stock") which are issuable upon exercise
of stock options granted or to be granted under the Mueller Industries, Inc.
1998 Stock Option Plan (the "Plan").
As counsel for the Company, we have examined, among other things, such Federal
and state laws and originals and/or copies (certified or otherwise identified to
our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing, we hereby inform you that in our opinion the shares of
Common Stock issuable upon exercise of stock options granted or to be granted
under the Plan have been duly and validly authorized for issuance and, when
issued in accordance with the terms of the Plan for consideration in excess of
$.01 per share, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission.
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We are members of the Bar of the State of New York and do not purport to be
experts in the laws of jurisdictions other than the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America.
Very truly yours,
/s/ Willkie Farr & Gallagher
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Mueller Industries, Inc. 1998 Stock Option Plan of our
report dated February 6, 1998, with respect to the consolidated financial
statements of Mueller Industries, Inc. incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 27, 1997 and the related
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Memphis Tennessee
May 7, 1998
