As filed with the Securities and Exchange Commission on June 26, 2002
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)
8285 Tournament Drive
Suite 150
Memphis, Tennessee 38125
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(Address, including zip code, of principal executive offices)
Mueller Industries, Inc. 2002 Stock Option Plan
(Full title of the plan)
John P. Fonzo
Vice President, General Counsel and Secretary
Mueller Industries, Inc.
8285 Tournament Drive
Suite 150
Memphis, Tennessee 38125
(901) 753-3200
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(Name, address (including zip code) and telephone number
(including area code) of agent for service)
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COPY TO:
Neil Novikoff, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount to be maximum maximum Amount of
securities to registered offering price aggregate registration
be registered (1) per share (2) offering price (2) fee
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Common Stock,
$0.01 par value
per share 750,000 $31.66 $23,745,000 $2,184.54
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(1) This Registration Statement covers 750,000 shares authorized to be issued
under the Mueller Industries, Inc. 2002 Stock Option Plan (the "Plan"). In
addition, this Registration Statement covers an indeterminable number of
additional shares as may hereafter be offered or issued pursuant to the
Plan, to prevent dilution resulting from stock splits, stock dividends or
similar transactions effected without the receipt of consideration and
pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act, based on the average of
high and low prices reported on the New York Stock Exchange on June 24,
2002.
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. (the "Company"), are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 29, 2001 filed pursuant to the Securities Exchange Act of 1934
(the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 30, 2002 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 herein by reference 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
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 non-employee director of the Company
and the beneficial owner of 46,000 shares of Common Stock, is Counsel to the law
firm of Willkie Farr & Gallagher.
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 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 or 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
Item 8. EXHIBITS
Exhibit No.
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5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as
to the legality of the shares of Common Stock to be issued.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (included 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.
(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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Memphis, State of Tennessee, on the 25th day of June,
2002.
MUELLER INDUSTRIES, INC.
By: /s/ Harvey L. Karp
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Harvey L. Karp
Chairman of the Board
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Harvey L. Karp and William D. O'Hagan, and each
of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary fully to all intents and purposes as
he might or could do in person thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
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/s/ Harvey L. Karp Chairman of the Board of June 25, 2002
------------------------------ Directors
Harvey L. Karp
/s/ William D. O'Hagan President, Chief Executive June 23, 2002
------------------------------ Officer and Director
William D. O'Hagan (Principal Executive
Officer)
/s/ Kent A. McKee Vice President and Chief June 25, 2002
------------------------------ Financial Officer
Kent A. McKee (Principal Financial and
Accounting Officer)
/s/ Gary S. Gladstein Director June 25, 2002
------------------------------
Gary S. Gladstein
/s/ Robert B. Hodes Director June 25, 2002
------------------------------
Robert B. Hodes
/s/ Gennaro J. Fulvio Director June 25, 2002
------------------------------
Gennaro J. Fulvio
EXHIBIT INDEX
Exhibit No. Description
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5 Opinion of Willkie Farr & Gallagher, counsel to the
Company, as to the legality of the shares to be issued.
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).