-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RJoz7Rxt1+6bTpkEFvttd/Vh5cuRwHcc5BezHUo+mbf8ryG6Er/JWllKOU200RnY sbFYL082TfnHq5gdHbfEkw== 0000950129-99-002377.txt : 19990521 0000950129-99-002377.hdr.sgml : 19990521 ACCESSION NUMBER: 0000950129-99-002377 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990520 EFFECTIVENESS DATE: 19990520 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHDOWN INC CENTRAL INDEX KEY: 0000313058 STANDARD INDUSTRIAL CLASSIFICATION: CEMENT, HYDRAULIC [3241] IRS NUMBER: 720296500 STATE OF INCORPORATION: LA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-78955 FILM NUMBER: 99631452 BUSINESS ADDRESS: STREET 1: 1200 SMITH ST STE 2400 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: 7136506200 MAIL ADDRESS: STREET 1: 1200 SMITH STREET SUITE 2400 CITY: HOUSTON STATE: TX ZIP: 77002 S-8 1 SOUTHDOWN, INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 20, 1999 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- SOUTHDOWN, INC. (Exact name of corporation as specified in its charter) LOUISIANA 72-0296500 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1200 SMITH STREET, SUITE 2400 HOUSTON, TEXAS 77002 (Address of Principal Executive Offices) (Zip Code)
SOUTHDOWN, INC. 1991 NONQUALIFIED STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS (Full title of plan) PATRICK S. BULLARD SENIOR VICE PRESIDENT -- GENERAL COUNSEL AND SECRETARY SOUTHDOWN, INC. 1200 SMITH STREET, SUITE 2400 HOUSTON, TEXAS 77002 (Name and address of agent for service) (713) 650-6200 (Telephone number, including area code, of agent for service) --------------------- CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------- TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE - -------------------------------------------------------------------------------------------------------------------- Common Stock, $1.25 par 325,000 value(1).................. shares(2)(3) $63.41(4) $20,608,250(4) $5,730(4) - -------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------------
(1) Includes the Preferred Stock Purchase Rights issuable pursuant to the Rights Agreement dated as of March 4, 1991, between the Registrant and American Stock Transfer & Trust Company. As no separate consideration is payable with respect to the Preferred Stock Purchase Rights, the registration fee with respect to such securities is included in the registration fee for the Common Stock. (2) The 325,000 shares are in addition to the 400,000 shares previously available under the Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors which have been previously registered under the Securities Act of 1933, as amended (the "Securities Act") pursuant to the registration statements referred to in the final paragraph on this facing page, 343,000 of which shares have not yet been issued (although options on 167,000 of such shares have been granted). A filing fee of $2,979.74 was previously paid by registrant with respect to such 343,000 shares. (3) Pursuant to Rule 416 under the Securities Act, includes any additional shares issued pursuant to the antidilution provisions of the plan. (4) The price of the Common Stock is estimated in accordance with Rule 457(c) and (h) solely for the purpose of calculating the registration fee by reference to the average of the high and low sale prices of the Common Stock on the New York Stock Exchange on May 19, 1999 which was $63.41 per share. THE DOCUMENTS SENT OR GIVEN TO NON-EMPLOYEE DIRECTORS IN CONNECTION WITH THE SOUTHDOWN, INC. 1991 NONQUALIFIED STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS AS DESCRIBED IN PART I OF THIS REGISTRATION STATEMENT AND THE OTHER DOCUMENTS WHICH TOGETHER THEREWITH CONSTITUTE THE PROSPECTUS MEETING THE REQUIREMENTS OF SECTION 10(a) OF THE SECURITIES ACT CONSTITUTE, PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, A COMBINED PROSPECTUS THAT ALSO RELATES TO AN AGGREGATE OF 343,000 SHARES OF COMMON STOCK REGISTERED ON FORM S-8, REGISTRATION NO. 33-45144, WHICH BECAME EFFECTIVE ON JANUARY 17, 1992, AND ON FORM S-8, REGISTRATION NO. 333-26592, WHICH BECAME EFFECTIVE ON MAY 5, 1997. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents containing the information specified in Part I will be sent or given to non-employee directors as specified by Rule 428(b). In accordance with the instructions to Part I of Form S-8, such documents are not being filed and will not be filed with the Securities and Exchange Commission (the "Commission"), either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents, or portions of documents, previously filed by Southdown, Inc. (the "Company") with the Commission are hereby incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1998; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999, as amended by Form 10-Q/A dated May 14, 1999; (c) The description of the Company's Common Stock, par value $1.25 per share, set forth in the Company's Registration Statement on Form 8-C relating to such Common Stock, and the description of the Company's Preferred Stock Purchase Rights set forth in the Company's Registration Statement on Form 8-A relating to such Preferred Stock Purchase Rights, as each such Registration Statement is amended to date. All reports and other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of filing of such reports and other documents, other than the portions of such documents which by statute, by designation in such documents or otherwise are not required to be filed by the Commission or are not required to be incorporated herein by reference. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for all purposes to the extent that a statement contained in any other subsequently filed document that is also incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Louisiana Business Corporation Law ("LBCL") generally gives a corporation the power to indemnify any of its directors or officers against certain expenses, judgments, fines and amounts paid in 2 3 settlement in connection with certain actions, suits or proceedings, provided generally that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In the case of an action by, or in the right of, the corporation, the corporation may indemnify such person against expenses, including attorneys' fees and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the action to conclusion, actually and reasonably incurred in connection with the defense or settlement of such action, and no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable for willful or intentional misconduct in the performance of his duty to the corporation, unless, and only to the extent that the court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Indemnification provided pursuant to the foregoing provisions is not, under the LBCL, deemed exclusive of any other rights to which the person indemnified is entitled under any bylaw, agreement, authorization of shareholders or directors; however, no such other indemnification measure shall permit indemnification of any person for the results of such person's willful or intentional misconduct. In addition, the LBCL contains provisions to the general effect that any director shall in the performance of his duties be fully protected in relying in good faith upon the records of the corporation and upon such information, opinions, reports or statements presented to the corporation, the board of directors, or any committee thereof by any of the corporation's officers or employees, or by any committee of the board of directors, or by any counsel, appraiser, engineer (including a petroleum reservoir engineer), or independent or certified public accountant selected by the board of directors or any committee thereof with reasonable care, or by any other person as to matters the director reasonably believes are within such other person's professional or expert competence and which person is selected by the board of directors or any committee thereof with reasonable care. A director shall not be liable for the commission of a prohibited act if his dissent was either noted in the minutes of the meetings or filed promptly thereafter in the registered office of the corporation. As permitted under Section 24(C)(4) of the LBCL, Article XIII of the Restated Articles of Incorporation of the Company eliminates the personal liability of any director or officer to the Company or its shareholders for monetary damages for breach of fiduciary duty in such capacity, except for (i) any breach of the duty of loyalty to the Company or its shareholders; (ii) acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law; (iii) unlawful payment of dividends or unlawful stock purchase or redemption; or (iv) any transaction from which the director or officer derived an improper personal benefit. Article VI, Section 6 of the Company's Bylaws contemplates that the Company shall indemnify its directors and officers to the maximum extent permitted by Louisiana law. In addition, the Company has purchased a liability insurance policy under which its directors and officers are indemnified against certain losses arising from certain claims that may be made against them by reason of their serving in such capacity. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION ----------- ----------- 5 -- Opinions of Bracewell & Patterson, L.L.P. and Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. regarding the legality of the shares of Common Stock covered by this Registration Statement. 15 -- Letter of Deloitte & Touche LLP regarding unaudited interim financial statements.
3 4
EXHIBIT NO. DESCRIPTION ----------- ----------- 23.1 -- Consents of Bracewell & Patterson, L.L.P. and Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. (included in their opinions filed as Exhibit 5 hereto). 23.2 -- Consent of Deloitte & Touche LLP. 99.1 -- Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors, as amended by Amendment dated March 25, 1999.
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: (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 this 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 this 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 (a)(1)(i) and (a)(1)(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 with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this 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 Exchange Act that is incorporated by reference in this 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 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, 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. 4 5 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 Houston, State of Texas, on the 20th day of May, 1999. SOUTHDOWN, INC. By: /s/ CLARENCE C. COMER ---------------------------------- Clarence C. Comer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ CLARENCE C. COMER President and Chief Executive Officer May 20, 1999 - -------------------------------------- and Director (Principal Executive Clarence C. Comer Officer) /s/ DENNIS M. THIES Executive Vice President -- Finance May 20, 1999 - -------------------------------------- and Chief Financial Officer Dennis M. Thies (Principal Financial Officer) /s/ ALLAN KORSAKOV Vice President and Corporate May 20, 1999 - -------------------------------------- Controller (Principal Accounting Allan Korsakov Officer) /s/ ROBERT S. EVANS Director May 20, 1999 - -------------------------------------- Robert S. Evans /s/ ROBERT G. POTTER Director May 20, 1999 - -------------------------------------- Robert G. Potter /s/ FRANK J. RYAN Director May 20, 1999 - -------------------------------------- Frank J. Ryan /s/ WHITSON SADLER Director May 20, 1999 - -------------------------------------- Whitson Sadler /s/ ROBERT J. SLATER Director May 20, 1999 - -------------------------------------- Robert J. Slater /s/ DAVID J. TIPPECONNIC Director May 20, 1999 - -------------------------------------- David J. Tippeconnic
5 6
SIGNATURE TITLE DATE --------- ----- ---- /s/ J. BRUCE TOMPKINS Director May 20, 1999 - -------------------------------------- J. Bruce Tompkins /s/ GEORGE E. UDING, JR. Director May 20, 1999 - -------------------------------------- George E. Uding, Jr. /s/ V. H. VAN HORN, III Director May 20, 1999 - -------------------------------------- V. H. Van Horn, III /s/ STEVEN B. WOLITZER Director May 20, 1999 - -------------------------------------- Steven B. Wolitzer
6 7 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION ----------- ----------- 5 -- Opinions of Bracewell & Patterson, L.L.P. and Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. regarding the legality of the shares of Common Stock covered by this Registration Statement. 15 -- Letter of Deloitte & Touche LLP regarding unaudited interim financial statements. 23.1 -- Consents of Bracewell & Patterson, L.L.P. and Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. (included in their opinions filed as Exhibit 5 hereto). 23.2 -- Consent of Deloitte & Touche LLP. 99.1 -- Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors, as amended by Amendment dated March 25, 1999.
EX-5 2 OPINIONS 1 EXHIBIT 5 [Letterhead of Bracewell & Patterson, L.L.P.] May 20, 1999 Southdown, Inc. 1200 Smith Street, Suite 2400 Houston, Texas 77002-4486 Ladies and Gentlemen: We have acted as counsel to Southdown, Inc., a Louisiana corporation (the "Company"), in connection with the Registration Statement on Form S-8 filed by the Company (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to 325,000 shares (the "Shares") of the Company's Common Stock, $1.25 par value per share (together with the associated preferred stock purchase rights being collectively referred to as the "Common Stock") issuable upon the exercise of stock options granted under the Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors, as amended (the "1991 Plan"). We have examined copies of (i) the Restated Articles of Incorporation of the Company, as amended, (ii) the Bylaws of the Company, as amended, (iii) the 1991 Plan, (iv) certain resolutions of the Board of Directors and shareholders of the Company, (v) the Registration Statement, and (vi) such other documents and records as we have deemed necessary and relevant for purposes hereof. In addition, we have relied on representations of officers of the Company and certificates of public officials as to certain matters of fact relating to this opinion and have made such investigations of law as we have deemed necessary and relevant. We have assumed the genuineness of all signatures, the authenticity of all documents and records submitted to us as originals, the conformity to authentic original documents and records of all documents and records submitted to us as copies, and the truthfulness of all statements of fact contained therein. Based on the foregoing, and subject to the limitations and assumptions set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that: 1. The Company is duly incorporated, validly existing and in good standing under the laws of the State of Louisiana. 2 Southdown, Inc. May 20, 1999 Page 2 2. The Shares have been duly and validly authorized and, upon issuance pursuant to the exercise of options granted under the 1991 Plan in accordance with the terms of the 1991 Plan and the option agreements related thereto, will be validly issued, fully paid and nonassessable. The foregoing opinion is based on and is limited to the law of the State of Texas, the law of the State of Louisiana and the relevant law of the United States of America, and we render no opinion with respect to the law of any other jurisdiction. Insofar as the law of the State of Louisiana is applicable to the matters discussed herein, we have relied exclusively upon the opinion of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P., a copy of which is annexed hereto, and our opinion is subject to the qualifications, limitations and assumptions set forth therein. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required pursuant to Section 7 of the Securities Act. Very truly yours, Bracewell & Patterson, L.L.P. 3 May 20, 1999 Bracewell & Patterson, L.L.P. 711 Louisiana Street Suite 2900 Houston, TX 77002 RE: Southdown, Inc. 325,000 Shares of Common Stock, $1.25 Par Value Per Share Registration Statement on Form S-8 Gentlemen and Ladies: We have been asked to render this opinion as Louisiana counsel to Southdown, Inc., a Louisiana corporation (the "Company"), in connection with the Registration Statement on Form S-8 filed by the Company under the Securities Act of 1933, as amended (the "Registration Statement"), with respect to 325,000 shares of the Company's Common Stock, $1.25 par value per share (together with the associated preferred purchase rights, the "Shares") issuable under the Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors (the "1991 Plan"). In connection with this representation and our opinion rendered in this letter, we have reviewed copies of the following documents: (a) the 1991 Plan; (b) the Restated Articles of Incorporation of the Company, as amended through this date; (c) the Bylaws of the Company, as amended through this date; (d) certain resolutions of the shareholders and of the Board of Directors of the Company; and (e) certificates of officers of the Company and of public officials. 4 Bracewell & Patterson, L.L.P. May 20, 1999 Page 2 For the purpose of the opinion expressed in this letter, we have assumed: (a) the legal capacity of all natural persons; (b) the genuineness of all signatures; (c) the authenticity of all documents, certificates and records submitted to us as originals, the conformity to original documents, certificates and records of all documents, certificates and records submitted to us as copies or facsimiles and the authenticity of the originals of such copies or facsimiles; (d) the truthfulness of all statements of fact and representations and warranties contained in the documents, certificates and records submitted us; (e) the proper grant of options in accordance with the terms and conditions of the 1991 Plan; (f) that the purchase price for all Shares issued under the 1991 Plan will have been paid in full in cash, property or services previously rendered to the Company prior to the issuance thereof and will not be less than the aggregate par value of the Shares so issued; and (g) that all documents, certificates and records referred to in this letter, including but not limited to the 1991 Plan, comply with all applicable laws other than the laws of the State of Louisiana. In addition, in rendering the opinions expressed in this letter, we have assumed the accuracy and completeness of, and have relied upon, certifications by public officials and officers of the Company. Based upon and in reliance on the foregoing and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that: 1. The Company is duly incorporated, validly existing and in good standing under the laws of the State of Louisiana. 2. The Shares have been duly and validly authorized and, upon issuance in accordance with the provisions and conditions of the 1991 Plan and the option agreements related thereto, will be validly issued, fully paid and nonassessable. The opinion expressed in this letter is subject to limitations imposed by the effect of general equitable principles, including without limitation the effect of concepts of good faith and fiduciary requirements. In addition, the opinion expressed in this letter is given only as of this date, is based on the law as in effect on this date and is limited to the matters stated herein and no opinion may be inferred beyond the matters expressly stated. We have no obligation, and will not undertake, to report to you or any third parties changes in facts or laws, statutes or case law. We hereby consent to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5 to the Registration Statement and the use of our name therein. 5 Bracewell & Patterson, L.L.P. May 20, 1999 Page 3 We are members of the Louisiana Bar, and the opinion in this letter is based on and limited to the laws of the State of Louisiana. The opinion contained in this letter is limited in that we express no opinion with respect to federal laws, state blue sky or other securities laws, tax or environmental laws or matters, the laws of any municipality, county or other political subdivision of the State of Louisiana or any agency thereof, or the laws of any jurisdiction other than Louisiana. Yours truly, Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. RMWmbs EX-15 3 LETTER OF DELOITTE & TOUCHE LLP 1 EXHIBIT 15 May 20, 1999 Southdown, Inc. 1200 Smith Street, Suite 2400 Houston, Texas 77002 We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of Southdown, Inc. and subsidiary companies for the periods ended March 31, 1999 and 1998, as indicated in our report dated April 20, 1999; because we did not perform an audit, we expressed no opinion on that information. We are aware that our report referred to above, which was included in your amended Quarterly Report on Form 10-Q/A for the quarter ended March 31, 1999, is being used in this Registration Statement. We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act. DELOITTE & TOUCHE LLP EX-23.2 4 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Southdown, Inc. on Form S-8 of our report dated January 27, 1999, incorporated by reference in the Annual Report on Form 10-K of Southdown, Inc. for the year ended December 31, 1998. DELOITTE & TOUCHE LLP Houston, Texas May 20, 1999 EX-99.1 5 AMENDED 1991 NONQUALIFIED STOCK OPTION PLAN 1 EXHIBIT 99.1 AS AMENDED 3/25/99 SOUTHDOWN, INC. 1991 NONQUALIFIED STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS 1. PURPOSE OF PLAN. The purpose of the Southdown, Inc. 1991 Nonqualified Stock Option Plan for Non-Employee Directors ("Plan") is to attract and retain the services of experienced and knowledgeable non-employee directors and provide an opportunity for ownership of the common stock, $1.25 par value ("Common Stock"), of Southdown, Inc., a Louisiana corporation ("Company"). 2. ADMINISTRATION OF PLAN. The Plan shall be administered by the Board of Directors of the Company ("Board"). Subject to the terms of the Plan, the Board shall have the power to interpret the provisions and supervise the administration of the Plan. All decisions made by the Board pursuant to the provisions of the Plan shall be made by a majority of its members at a duly held regular or special meeting or by written consent in lieu of any such meeting. A majority of the directors in office shall constitute a quorum and all decisions made by the Board pursuant to the provisions of the Plan shall be made by a majority of the directors present at any duly held regular or special meeting at which a quorum is present (unless the concurrence of a greater proportion is required by law or by the articles or bylaws of the Company) or by the written consent of all of the directors in lieu of any such meeting. 3. STOCK RESERVED FOR THE PLAN. Subject to adjustment as provided in paragraph 11, the shares subject to the Plan shall consist of 725,000 unissued shares of Common Stock or previously issued shares reacquired and held by the Company and such amount of shares shall be and is hereby reserved for issuance pursuant to this Plan. Any of such shares that may remain unsold and that are not subject to outstanding options at the termination of the Plan shall cease to be reserved for the purpose of the Plan, but until termination of the Plan and the expiration, exercise, cancellation, surrender or lapse of all outstanding options granted under the Plan, the Company shall at all times reserve a sufficient number of shares to meet the requirements of the Plan. Should any option expire or be cancelled prior to its exercise in full, the shares theretofore subject to such option may again be made subject to an option under the Plan. 4. GRANT OF OPTIONS. Each director of the Company who is not otherwise an employee of the Company or any of the Company's subsidiaries (as defined in Section 424(f) of the Internal Revenue Code of 1986) (hereinafter referred to as an "Eligible Director", which term shall include any transferee permitted pursuant to paragraph 9 below) shall be granted one option to acquire 10,000 shares of Common Stock ("Initial Option"), in the case of an Eligible Director serving on the Board on the date of adoption of the Plan by the Board, on such date of adoption and in all other cases on the date of such director's first election to the Board. Beginning on the Annual Meeting of Shareholders held in 1999, and on the date of each Annual Meeting of Shareholders thereafter where an Eligible Director continues to serve as a Director of the Company after such meeting, (i) each Eligible Director who is neither a chairman of one of the committees of the Board nor the Chairman of the Board shall automatically be -1- 2 granted an additional option to acquire 7,500 shares of Common Stock, (ii) each Eligible Director who is a chairman of one of the committees of the Board, but is not Chairman of the Board, shall automatically be granted an additional option to acquire 8,000 shares of Common Stock, and (iii) the Chairman of the Board of Directors shall automatically be granted an additional option to acquire 26,000 shares of Common Stock (each annual grant under (i), (ii) and (iii) for an Eligible Director is referred to hereinafter as a "Subsequent Option"). The options granted to Eligible Directors shall be automatic, nondiscretionary, and subject to the following conditions and limitations in addition to those set forth elsewhere in this Plan: (x) the exercise price of each option shall be equal to the greater of the par value of the Common Stock or 100% of the fair market value of the Common Stock on the Date of Grant; (y) each option shall become exercisable six months after the Date of Grant; (z) notwithstanding clause (y) above, each option shall become fully exercisable upon the death or disability of the Eligible Director while serving as a Director of the Company or upon a Change in Control of the Company while serving as a Director of the Company. For the purposes of this paragraph 4, the following terms shall have the following meanings: (a) "Date of Grant" means (i) in the case of an Initial Option granted to an Eligible Director serving on the Board on the date of the adoption of the Plan by the Board, on such date of adoption and in all other cases on the date on which the Eligible Director is first elected to the Board; and (ii) in the case of a Subsequent Option, the date of each Annual Meeting of Shareholders. (b) The fair market value of a share of Common Stock on a particular date shall be deemed to be the average (mean) of the reported "high" and "low" sales prices for such shares as reported in The Wall Street Journal's NYSE-Composite Transactions listing for such day (corrected for obvious typographical errors), or if such shares are not reported in such listing, then the average of the reported "high" and "low" sales prices on the largest national securities exchange (based on the aggregate dollar value of securities listed) on which such shares are listed or traded, or if such shares are not listed or traded on any national securities exchange, then the average of the reported "high" and "low" sales prices for such shares in the over-the-counter market, as reported on the National Association of Securities Dealers Automated Quotations System, or, if such prices shall not be reported thereon, the average between the closing bid and asked prices so reported, or, if such prices shall not be reported, then the average closing bid and asked prices reported by the National Quotation Bureau Incorporated, or, in all other cases, the value established by the Board of Directors of the Company in good faith. 5. OPTION AGREEMENT. Each option granted under the Plan shall be evidenced by an agreement, in a form approved by the Board, which shall be subject to the terms and conditions of the Plan. Any agreement may contain such other terms, provisions and conditions not inconsistent with the Plan as may be determined by the Board. 6. TERM OF OPTION. Each option granted under this Plan shall provide that it shall terminate and be of no force or effect with respect to any shares not previously taken up by the Eligible Director upon the first to occur of (a) the expiration of ten years from the date the grant of the option or (b) the expiration of ninety days after the termination of the Eligible Director's service as a Director of the Company for any reason (other than death, disability or retirement under a retirement plan of the Company) prior to a Change in Control of the Company; provided, that if death of the Eligible Director occurs within ninety days of termination of service as a Director of the Company prior to a Change in Control of the Company, clause (b) shall be inapplicable. If, following a Change in Control of the Company, the Eligible Director's service as a Director is terminated for any reason, each option may be exercised during the remainder of its full ten-year term to the extent unexercised. -2- 3 7. PROCEDURE FOR EXERCISE. Options shall be exercised by written notice to the Company setting forth the number of shares with respect to which the option is to be exercised and specifying the address to which the certificates for such shares are to be mailed. Such notice shall be accompanied by cash or certified check, bank draft, or postal or express money order payable to the order of the Company, for the amount of the option price for the number of shares of the Common Stock with respect to which the option is then being exercised or, at the option of the Eligible Director, accompanied by Common Stock theretofore owned by the Eligible Director equal in value to the full amount of the option price (or any combination of cash or such Common Stock). For purposes of determining the amount, if any, of the purchase price satisfied by payment in Common Stock, such Common Stock shall be valued at its fair market value on the date of exercise in accordance with paragraph 4(b). Any Common Stock delivered in satisfaction of all or a portion of the purchase price shall be appropriately endorsed for transfer and assigned to the Company. As promptly as practicable after receipt of such written notification and payment, the Company shall deliver to the Eligible Director certificates for the number of shares with respect to which such option has been so exercised, issued in the Eligible Director's name; provided, however, that such delivery shall be deemed effected for all purposes when a stock transfer agent of the Company shall have deposited such certificates in the United States mail, addressed to the Eligible Director, at the address specified pursuant to this paragraph 7. 8. EFFECT OF DEATH OR DISABILITY. (a) In the event of the death or disability of an Eligible Director following the Date of Grant and while serving as a Director of the Company, and while options granted hereunder are still in force and unexpired under the terms of paragraph 6, the exercisability of the options shall be accelerated. Such acceleration shall be effective as of the date of death or disability, as the case may be. The options outstanding in the name of the Eligible Director shall thereupon be exercisable in full without regard to any exercise provisions. (b) No transfer of an option by an Eligible Director by will, by the laws of descent and distribution or pursuant to a qualified domestic relations order shall be effective to bind the Company unless the Company shall have been furnished with written notice of the same and an authenticated copy of the will or order and such other evidence as the Board may deem necessary to establish the validity of the transfer and the acceptance of the transferee or transferees of the terms and conditions of such option. 9. ASSIGNABILITY. An option shall not be assignable or otherwise transferable except by will, by the laws of descent and distribution or pursuant to a qualified domestic relations order as that term is defined by the Internal Revenue Code of 1986, as amended, or Title I of the Employee Retirement Income Security Act, or the rules thereunder. 10. NO RIGHTS AS SHAREHOLDER. No Eligible Director shall have any rights as a shareholder with respect to shares covered by an option until the date of issuance of a stock certificate for such shares; except as provided in paragraph 11, no adjustment for dividends, or otherwise, shall be made if the record date therefor is prior to the date of issuance of such certificate. 11. STOCK DIVIDENDS, STOCK SPLITS AND CERTAIN OTHER CORPORATION TRANSACTIONS. (a) The existence of this Plan and the Options granted hereunder shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or -3- 4 consolidation of the Company, or any issue of bonds, debentures or preferred or preference stocks ranking prior to or affecting the Common Stock or the rights attendant thereto, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the Company's assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. (b) The shares with respect to which options may be granted hereunder are shares of Common Stock of the Company as presently constituted. If, and whenever, prior to the delivery by the Company of all of the shares of the Common Stock which are subject to options granted hereunder, the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend, a stock split, a combination of shares, a recapitalization or other increase or reduction of the number of shares of the Common Stock outstanding without receiving consideration therefor in money, services or property, the number of shares of Common Stock available under this Plan and the number of shares of Common Stock with respect to which options granted hereunder may thereafter be exercised shall (i) in the event of an increase in the number of outstanding shares, be proportionately increased, and the cash consideration payable per share shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding shares, be proportionately reduced, and the cash consideration payable per share shall be proportionately increased. (c) If the Company is reorganized, merged or consolidated or is otherwise a party to a Plan of exchange with another corporation pursuant to which reorganization, merger, consolidation or Plan of exchange shareholders of the Company receive any shares of Common Stock or other securities or if the Company shall distribute ("Spin Off") securities of another corporation to its shareholders, there shall be substituted for the shares subject to the unexercised portions of outstanding options granted hereunder an appropriate number of shares of (i) each class of stock or other securities which were distributed to the shareholders of the Company in respect of such shares in the case of a reorganization, merger, consolidation or plan of exchange, or (ii) in the case of a Spin Off, the securities distributed to shareholders of the Company together with shares of Common Stock, such number of shares or securities to be determined in accordance with the provisions of Section 424 of the Code (or other applicable provisions of the Code or regulations issued thereunder which may from time to time govern the treatment of stock options in such a transaction); provided, however, that all such options may be cancelled by the Company as of the effective date of (x) a reorganization, merger, consolidation, plan of exchange or Spin Off or (y) any dissolution or liquidation of the Company, by giving notice to each Eligible Director of its intention to do so and by permitting the purchase for a period of at least thirty days during the sixty days next preceding such effective date of all of the shares subject to such outstanding options, without regard to the installment provisions set forth in the Plan or the option agreements; and provided further that in the event of a Spin Off, the Company may, in lieu of substituting securities or accelerating and canceling options as contemplated above, elect (i) to reduce the purchase price for each share of Common Stock subject to an outstanding option by an amount equal to the fair market value, as determined in accordance with the provisions of paragraph 4(b), of the securities distributed in respect of each outstanding share of Common Stock in the Spin Off or (ii) to reduce proportionately the purchase price per share and to increase proportionately the number of shares of Common Stock subject to each option in order to reflect the economic benefits inuring to the shareholders of the Company as a result of the Spin Off. (d) Except as hereinbefore expressly provided, the issue by the Company of shares of stock of any class, or securities convertible into or exchangeable for shares of stock of any class, for cash or property, or for labor or services, either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into or exchangeable for shares of stock of any class shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Common Stock subject to options granted hereunder. (e) Each option granted hereunder shall become fully exercisable upon a Change in Control of the Company (as defined in the next sentence). "Change in Control" of the Company shall be conclusively deemed to have occurred if (and only if) any of the following shall have taken place: (i) a Change in Control is reported by the Company in response to either Item 6 (e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or Item 1 of Form 8-K promulgated under the Exchange Act; (ii) any "person" (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing forty percent or more of the combined voting power of the Company's then outstanding securities; or (iii) following the election or removal of directors, a majority of the Board consists -4- 5 of individuals who were not members of the Board two years before such election or removal, unless the election of each director who was not a director at the beginning of such two-year period has been approved in advance by directors representing at least a majority of the directors then in office who were directors at the beginning of the two-year period. 12. PURCHASE FOR INVESTMENT. Unless the options and shares of Common Stock covered by this Plan have been registered under the Securities Act of 1933, as amended, or the Company has determined that such registration is unnecessary, each person exercising an option under this Plan may be required by the Company to give a representation in writing that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the distribution of any part thereof. 13. TAXES. (a) The Company may make such provisions as it may deem appropriate for the withholding of any taxes which it determines is required in connection with any options granted under this Plan. (b) Any Eligible Director may pay all or any portion of the taxes required to be withheld by the Company or paid by him in connection with the exercise of an option by electing to have the Company withhold shares of Stock, or by delivering previously owned shares of Common Stock, having a fair market value, determined in accordance with paragraph 4(b), equal to the amount required to be withheld or paid. An Eligible Director must make the foregoing election on or before the date that the amount of tax to be withheld is determined ("Tax Date"). All such elections are irrevocable and subject to disapproval by the Board and are subject to the additional restriction that such election may not be made within six months of the grant of an option, provided that this limitation shall not apply in the event of death or disability. Where the Tax Date in respect of an option is deferred until six months after exercise and the Eligible Director elects share withholding, the full amount of shares of Common Stock will be issued or transferred to him upon exercise of the option, but he shall be unconditionally obligated to tender back to the Company the number of shares necessary to discharge the Company's withholding obligation or his estimated tax obligation on the Tax Date. 14. EFFECTIVE DATE OF PLAN. This Plan shall be effective as of February 14, 1991. Options granted under this Plan are subject to, and may not be exercised before, the approval of the Plan at the 1991 Annual Meeting of Shareholders by the affirmative vote of the holders of a majority of the outstanding shares of the Company present, or represented by proxy, and entitled to vote thereat. If such approval of the Plan by the shareholders is not forthcoming, any options granted pursuant to this Plan shall be void. 15. AMENDMENT OR TERMINATION. The Board may amend, alter or discontinue this Plan, except that no amendment or alteration shall be made which would impair the rights of any Eligible Director under any option theretofore granted, without his consent, and except that no amendment or alteration shall be made which, without the approval of the shareholders, would: (a) Increase the total number of shares reserved for the purposes of this Plan or decrease the option price provided for in paragraph 4, except in each case as provided in paragraph 11, or change the class of persons eligible to participate in this Plan as provided in paragraph 4; (b) Extend the option period provided for in paragraph 6; (c) Materially increase the benefits accruing to Eligible Directors under this Plan; or -5- 6 (d) Modify the requirements as to eligibility for participation in this Plan. Notwithstanding the foregoing, to the extent but only to the extent required in order that Rule 16b-3(c)(2)(ii)(B), as promulgated in SEC Release No. 34-28869, February 8, 1991, (or any replacement rule adopted pursuant to the Exchange Act, as the same now exist and as any of the above may be amended from time-to-time) be complied with, the Plan shall not be amended more than once every six months, other than to comport with changes in Internal Revenue Code of 1986, the Employee Retirement Income Security Act, or the rules thereunder. 16. GOVERNMENT REGULATIONS. This Plan, and the grant and exercise of options thereunder, and the obligation of the Company to sell and deliver shares under such options, shall be subject to all applicable laws, rules and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required, including but not limited to the provisions of Rule 16b-3 of the Exchange Act, (or any replacement rule adopted pursuant to the Exchange Act, as the same now exist and as any of the above may be amended from time-to-time) that qualify the option grant and exercise for an exemption from the provisions of Section 16(b) of the Exchange Act. Further, if any Plan provision is found or determined by the Board not to be in compliance with Rule 16b-3 or Section 16(b), the provision shall be deemed null and void, and shall have no effect. -6- -----END PRIVACY-ENHANCED MESSAGE-----