-----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, KWbNS24roBDA7T/+OPiw/2DbKjc0XQeXOSkaIY9W2DKW03hL89Rhdvbna/7+BAuq CiEeLSBJ78sgH1LeNnnd3g== 0000950124-99-004293.txt : 19990729 0000950124-99-004293.hdr.sgml : 19990729 ACCESSION NUMBER: 0000950124-99-004293 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990728 EFFECTIVENESS DATE: 19990728 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MCCLAIN INDUSTRIES INC CENTRAL INDEX KEY: 0000063686 STANDARD INDUSTRIAL CLASSIFICATION: TRUCK & BUS BODIES [3713] IRS NUMBER: 381867649 STATE OF INCORPORATION: MI FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-83919 FILM NUMBER: 99671929 BUSINESS ADDRESS: STREET 1: 6200 ELMRIDGE RD CITY: STERLING HEIGHTS STATE: MI ZIP: 48310 BUSINESS PHONE: 8102643611 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on July 28, 1999 Registration No. 333-____________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________ MCCLAIN INDUSTRIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENT) MICHIGAN 38-1867649 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) ________________ 6200 ELMRIDGE ROAD STERLING HEIGHTS, MICHIGAN 48310 (Address of Principal Executive Offices) 1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE DIRECTORS (Full title of the plan) KENNETH D. MCCLAIN, PRESIDENT MCCLAIN INDUSTRIES, INC. 6200 ELMRIDGE ROAD STERLING HEIGHTS, MICHIGAN 48310 (810) 264-3611 (Name, Address, and Telephone Number, Including Area Code, of Agent for Service) Copies of all correspondence to: ROBERT J. GORDON, ESQ. JAFFE, RAITT, HEUER & WEISS, P.C. ONE WOODWARD AVENUE SUITE 2400 DETROIT, MICHIGAN 48226 CALCULATION OF REGISTRATION FEE
=============================================================================================================== Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered Offering Price Per Aggregate Offering Registration Fee - ------------------- ------------ Share (1) Price (1) ---------------- --------- --------- Common Stock, no par value 100,000 $ 6.00 $ 600,000 $ 166.80 ===============================================================================================================
(1) Computed in accordance with Rules 457(h) and 457(c) under the Securities Act of 1933. The estimated exercise price of $6.00 per share was computed in accordance with Rule 457 based upon the average of the high and low prices of the Registrant's common stock on July 23, 1999 on the NASDAQ National Market. 2 PART I ITEM 1. PLAN INFORMATION The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1). In accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission") and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1). In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed with the Commission are incorporated herein by reference: 1. McClain Industries, Inc.'s ("McClain") Annual Report on Form 10-K for the year ended September 30, 1998, filed with the Commission on December 23,1998. 2. McClain's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998, filed with the Commission on February 12, 1999, as amended by Form 10-Q/A filed with the Commission on March 19, 1999. 3. McClain's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999, filed with the Commission on May 7, 1999. 4. McClain's Current Report on Form 8-K dated February 9, 1999, filed with the Commission on February 10, 1999. 5. The description of the Common Stock contained in McClain's Registration Statement on Form 8-A filed by McClain with the Commission on May 3, 1974 under Section 12 of the Exchange Act. In addition, all documents filed by McClain 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 securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Any statement contained in this Registration Statement or in a document incorporated, or deemed to be incorporated, by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such statement. Except as so modified or superseded, such statement shall -2- 3 not be deemed to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of McClain Common Stock to be issued pursuant to this registration statement will be passed upon by Jaffe, Raitt, Heuer & Weiss, P.C. As of July 27, 1999, certain shareholders of Jaffe, Raitt, Heuer & Weiss, P.C. beneficially owned approximately 8,689 shares of McClain Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Article X of McClain's Articles of Incorporation, as amended, limits the liability of its directors to the fullest extent permitted by the Michigan Business Corporation Act (the "MBCA"). Specifically, directors of McClain will not be personally liable to McClain or its stockholders for monetary damages for a breach of fiduciary duty as directors, except liability for: (i) Any breach of the duty of loyalty to McClain or its stockholders; (ii) Acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (iii) A violation of Section 551 of the MBCA; (iv) Any transaction from which the director derives an improper personal benefit; and (v) Any other act or omission as to which the MBCA does not permit a director's liability to be so limited. Section V of McClain's By-laws provides that McClain may indemnify against expenses, including attorneys' fees, a person who is a party or is threatened to be made a party to a threatened, pending or completed action, suit or proceeding, whether civil or criminal, administrative or investigative, or formal or informal, by reason of their status as a present or former director, officer, employee or agent of McClain, or who is or was serving at the request of McClain (the "Indemnitee"). There shall be no indemnification, however, in claims, issues or matters by McClain, or pursuant to McClain's rights in which a person is found liable to McClain. Section 563 of the MBCA and Section V(c) of the By-laws require McClain to indemnify an Indemnitee for expenses, including attorneys' fees, incurred in an action, suit or proceeding in which the Indemnitee is successful on the merits or in defense of such action, suit or proceeding. To be entitled to indemnification, the Indemnitee's actions must have been in good faith, and reasonably believed to be in, or not opposed to, the best interests of McClain. Unless ordered by a court of law, indemnification will be made only on a determination that the Indemnitee's actions have met the standards set forth in the By-laws, and such determination shall be made by: (i) A majority vote of a quorum of disinterested directors; (ii) If no such quorum is obtainable, then by a majority vote of a committee of at least two (2) directors; (iii) By independent legal counsel in a written opinion; (iv) By a majority vote of the stockholders; or (v) By a court. Section V(f) of the By-laws authorizes McClain to purchase and maintain insurance on behalf of any director, officer, employee or agent of McClain, or who is serving as such at McClain's request, as protection from certain liabilities, including liabilities against which McClain cannot provide indemnification. -3- 4 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS The exhibits filed herewith are set forth on the exhibit index filed as part of this Registration Statement. 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; (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value 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 set forth in this registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; Provided, however, that paragraphs (1)(i) and (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 by McClain pursuant to Section 13 or Section 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, 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, each filing of the Registrant's annual report pursuant to section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing -4- 5 provisions, or otherwise, the Registrant 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 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. 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 Sterling Heights, State of Michigan, on July 27, 1999. McCLAIN INDUSTRIES, INC., a Michigan corporation By: /s/ Kenneth D. McClain ____________________________________________ Kenneth D. McClain, Chairman of the Board -5- 6 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 date indicted. SIGNATURE TITLE DATE /s/ Kenneth D. McClain Chairman of the Board, July 27, 1999 _________________________ Chief Executive Officer, Kenneth D. McClain and President. /s/ Robert W. McClain Senior Vice President and July 27, 1999 __________________________ Assistant Secretary. Robert W. McClain /s/ Raymond Elliott Director. July 27, 1999 __________________________ Raymond Elliott /s/ Walter J. Kirchberger Director. July 27, 1999 __________________________ Walter J. Kirchberger /s/ Mark S. Mikelait Treasurer. July 27, 1999 __________________________ Mark S. Mikelait /s/ Carl Jaworski Secretary. July 27, 1999 __________________________ Carl Jaworski -6- 7 MCCLAIN INDUSTRIES, INC. EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION METHOD OF FILING 4.1 McClain Articles of Incorporation, as Incorporated by amended reference to McClain's Registration Statement on Form S-2 (File No. 33-84562). 4.2 McClain By-laws, as amended Incorporated by reference to McClain's Annual Report on Form 10-K for the year ended September 30, 1989 4.3 McClain 1999 Retainer Stock Plan Filed herewith. for Non-Employee Directors 5.1 Opinion of Jaffe, Raitt, Heuer & Filed herewith. Weiss, P.C. with respect to the validity of the shares of Common Stock being registered 23.1 Consent of Jaffe, Raitt, Heuer & Filed herewith. Weiss, P.C. (included as part of Exhibit 5.1) 23.2 Consent of Rehmann Robson P.C., Filed herewith. Independent accountants EX-4.3 2 MCCLAIN 1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE 1 EXHIBIT 4.3 MCCLAIN INDUSTRIES, INC. 1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE DIRECTORS SECTION 1. TITLE. This plan shall be known as the "McClain Industries, Inc. 1999 Retainer Stock Plan for Non-Employee Directors" and is referred to herein as the "Plan." SECTION 2. ADOPTION OF THE PLAN. The Plan was approved by the Board of Directors ("Board") of McClain Industries, Inc., a Michigan corporation (the "Company"), on February 8, 1999. The Plan shall automatically expire and terminate on December 31, 1999 unless the Plan shall be approved by the Company's stockholders not later than December 30, 1999. SECTION 3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by either the entire Board or, at the discretion of the Board, by a committee consisting of at least two members of the Board. The administrator of the Plan shall have the power to devise and implement rules and procedures for the operation of the Plan, and to interpret and otherwise implement the Plan in all respects. SECTION 4. ELIGIBLE DIRECTORS. Any director of the Company or any subsidiary of the Company who was not an employee of the Company or its subsidiaries at any time during any fiscal year for which shares of the Company's Common Stock ("Common Stock") are to be issued under the Plan to such person ("Eligible Director") is automatically eligible to participate under the Plan. SECTION 5. ELECTION TO PARTICIPATE. Eligible Directors may elect to receive shares of Common Stock in full or partial payment of the directors' retainer fees and fees for attending Board and Board committee meetings (including such fees for service on the board of directors of a subsidiary of the Company) (collectively, "Fees"). If an Eligible Director wishes to participate under this Plan, he or she must make an election (an "Election") no later than thirty (30) days prior to a payment date for any Fees (the "Election Date"). Elections made or modified less than thirty (30) days prior to a payment date will be effective for the next occurring payment date. Elections will continue in force until rescinded or modified. An Election (a) must be in writing and delivered to the Company's Secretary prior to the Election Date, (b) will be revocable and may be amended or modified from time to time, and (c) shall specify the percentage or dollar amount of Fees to be paid in shares of Common Stock. SECTION 6. ISSUANCE OF SHARES. The Company shall sell and issue shares of Common Stock to each Eligible Director who has properly made an Election (a "Participating Director") as payment for the portion of Fees specified in such Participating Director's Election at the time that any Fees are paid to directors in accordance with the Company's policies and practices concerning payment of Fees (the "Issuance Date"). The number of shares of Common Stock to be issued to a Participating Director shall be determined by dividing the dollar amount of the Fees such Participating Director elected to receive in shares of Common Stock by the Fair Market Value (as defined below) of Common Stock on the first business day prior to the Issuance Date. Any fractional shares of Common Stock derived from such calculation shall be paid in cash. For purposes of this Plan, "Fair Market Value" means, on any given date, the last reported sale price per share of Common Stock on such date or, in case no such sale takes place on such date, the average of the closing bid and asked prices on such date, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on a national securities exchange or included for quotation on the Nasdaq National Market, or if the Common Stock is not so listed or admitted to trading or included for quotation, the average 2 of the highest bid and lowest asked prices for the Common Stock on such date as reported on the NASDAQ OTC Bulletin Board Service or by the National Quotation Bureau, Incorporated or any comparable service, or, if the Common Stock is not quoted by any such organization, the fair market value of a share of Common Stock as determined in good faith by the Board. SECTION 7. NUMBER OF SHARES RESERVED. The total number of shares of Common Stock issuable under the Plan shall not exceed 100,000 shares of Common Stock; provided, however, that the number and kind of shares available for issuance under the Plan shall be appropriately adjusted to reflect any stock dividend, stock split, combination or exchange of shares, merger, reorganization, consolidation, split-up, spin-off or other change in capitalization with a similar substantive effect upon shares of Common Stock. SECTION 8. FEES. All matters relating to the Fees, including, without limitation, the existence, continuation, amount and frequency of payment, and all other terms thereof, shall be and remain within the sole and absolute discretion of the Board. SECTION 9. SECURITIES LAW RESTRICTIONS. The shares of Common Stock issuable under the Plan may not be issued by the Company without registration or qualification of such shares under the Securities Act of 1933, as amended, and under various state securities laws or without an exemption from such registration requirements. Unless the shares to be issued under the Plan have been registered and/or qualified as appropriate, the Company shall be under no obligation to issue shares of Common Stock under the Plan unless and until such time as there is an appropriate exemption available from the registration or qualification requirements of federal and state law as determined by the Board in its sole and absolute discretion. The Board may require any Participating Director to agree with the Company to represent and agree in writing that if such shares of Common Stock are issuable under an exemption from registration requirements, the shares will be "restricted" securities which may be resold only in compliance with applicable securities laws, and that such person is acquiring the shares for investment, and not with the view toward distribution. SECTION 10. AMENDMENT. The Board shall have complete power and authority to amend the Plan at any time and no approval by the stockholders of the Company or by any other person, committee or entity of any kind shall be required to make any amendment; provided, however, that the Board shall not, without the requisite affirmative approval of the stockholders of the Company, make any amendment which requires stockholder approval under any applicable law, rule or regulation. SECTION 11. SUSPENSION OR TERMINATION. The Board shall have the right and power to suspend the operation of or terminate the Plan at any time. If not earlier terminated, the Plan shall terminate on December 31, 2009. No shares of Common Stock may be issued under the Plan while the Plan is suspended or after termination of the Plan. SECTION 12. COMPLIANCE WITH RULE 16B-3. It is intended that the Plan be applied and administered in compliance with Rule 16b-3 of the Securities Exchange Act of 1934, as amended ("Rule 16b-3"). If any provision of the Plan would be in violation of Rule 16b-3 if applied as written, such provision shall not have effect as written and shall be given effect so as to comply with Rule 16b-3, as determined by the Board. -2- EX-5.1 3 OPINION OF JAFFE, RAITT, HEUER & WEISS, P.C. 1 [Letterhead of Jaffe, Raitt, Heuer & Weiss, P.C.] July 27, 1999 McClain Industries, Inc. 6200 Elmridge Road Sterling Heights, Michigan 48310 RE: MCCLAIN INDUSTRIES, INC. REGISTRATION STATEMENT ON FORM S-8 1999 RETAINER STOCK PLAN FOR NON-EMPLOYEE DIRECTORS Gentlemen: We have acted as counsel to McClain Industries, Inc. (the "Company"), a Michigan corporation, in connection with the registration by the Company of up to 100,000 shares (the "Shares") of Common Stock, no par value, to be issued and sold by the Company from time to time pursuant to the McClain Industries, Inc. 1999 Retainer Stock Plan for Non-Employee Directors, as described in the Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission (together with all amendments thereto, the "Registration Statement"). As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by the Company in connection with the sale and issuance of the Shares. We do not purport to be experts on or to express any opinion in this letter concerning any law other than the laws of the State of Michigan, and this opinion is qualified accordingly. This opinion is limited to matters expressly set forth in this letter, and no opinion is to be inferred or may be implied beyond the matters expressly so stated. In rendering the opinion contained in this letter, we have assumed without investigation that the information supplied to us by the Company is accurate and complete. Based upon and subject to the foregoing, it is our opinion that the Shares have been duly authorized, and upon the issuance and sale thereof in the manner referred to in the Registration Statement, will be validly issued, fully paid and non-assessable. 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever it appears in the Registration Statement. Very truly yours, JAFFE, RAITT, HEUER & WEISS Professional Corporation /s/ Jaffe, Raitt, Heuer & Weiss, P.C. ------------------------------------- EX-23.2 4 CONSENT OF REHMANN ROBSON P.C. 1 CONSENT OF REHMANN ROBSON, P.C. INDEPENDENT ACCOUNTANTS McClain Industries, Inc. and Subsidiaries We consent to the incorporation by reference in the Registration Statement of McClain Industries, Inc. on Form S-8 pertaining to the Retainer Stock Plan of our report dated December 7, 1998, on our audits of the consolidated financial statements contained in the Annual Report of McClain Industries, Inc. on Form 10-k for the year ended September 30, 1998. /s/ REHMANN ROBSON, P.C. Farmington Hills, Michigan July 27, 1999 -----END PRIVACY-ENHANCED MESSAGE-----