As filed with the Securities and Exchange Commission on November 2, 2001.
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 registrant as specified in its charter)
Delaware 25-0790410
---------------------------- ----------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8285 Tournament Drive, Suite 150
Memphis, Tennessee 38125
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(Address of Principal Executive Offices)
Mueller Industries, Inc. Stock Option Agreements
for Harvey L. Karp and William D. O'Hagan
-----------------------------------------
(Full title of the plan)
John P. Fonzo, Esq.
Vice President, General Counsel and Secretary
Mueller Industries, Inc.
8285 Tournament Drive, Suite 150
Memphis, Tennessee 38125
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(Name and address of agent for service)
(901) 753-3200
--------------
(Telephone number, including area code, of agent for service)
Copy To:
Neil Novikoff, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
CALCULATION OF REGISTRATION FEE
--------------------------------- -------------- ------------------------- --------------------------- -----------------
Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered(1) Price Per Share (2) Offering Price (2) Registration Fee
--------------------------------- -------------- ------------------------- --------------------------- -----------------
Common Stock, par value $0.01
per share 3,980,000 $29.10 $115,818,000 $28,954.50
(1) Represents 3,600,000 shares of common stock, par value $0.01 per share, of
Mueller Industries, Inc. (the "Common Stock"), issuable pursuant to Mr.
Karp's Option Agreements and 380,000 shares of Common Stock issuable
pursuant to Mr. O'Hagan's Option Agreements, together with an indeterminate
number of shares of Common Stock which become issuable under Mr. Karp's
Option Agreements and Mr. O'Hagan's Option Agreements as a result of any
stock split, stock dividend, reclassification, recapitalization or similar
adjustment(s) of the Common Stock.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act of
1933, as amended (the "Securities Act").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Item 1 of this Form is included in documents sent
or given to participants as specified by Rule 428(b)(1) under the Securities
Act. In accordance with Rule 428(a) and the requirements of Part I of Form S-8,
such documents are not being filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act.
This Registration Statement also contains a Prospectus, prepared in
accordance with the requirements of Part I of Form S-3 (in accordance with
Section C of the General Instructions to Form S-8), which covers re-offers and
re-sales of shares of Common Stock that have been or may be issued under various
option agreements between the Registrant and Harvey L. Karp and various option
agreements between the Registrant and William D. O'Hagan.
REOFFER PROSPECTUS
4,279,204 SHARES
COMMON STOCK
This Prospectus relates to the sale by certain selling stockholders of
Mueller Industries, Inc. (the "Company" or "we") of up to 4,279,204 shares of
the Company's common stock, par value $0.01 per share (the "Common Stock"),
which they have acquired or may acquire pursuant to option agreements with the
Company (the "Option Agreements.")
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INVESTING IN THE COMMON STOCK INCLUDES RISKS. SEE "RISK FACTORS" BEGINNING
ON PAGE 3.
------------------------------
This Prospectus may be used by any selling stockholder or by any
broker-dealer who may participate in sales of the shares.
The prices at which the selling stockholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any proceeds from the sale of the shares.
The Common Stock trades on the New York Stock Exchange under the symbol
"MLI".
------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------------
THE DATE OF THIS PROSPECTUS IS NOVEMBER 2, 2001.
TABLE OF CONTENTS
Section Page
------- ----
The Company...................................................................3
Risk Factors..................................................................3
Competitive Industry...................................................4
Cost of Raw Materials..................................................4
Cyclicality of End-Use Markets.........................................4
Reliance on Key Management.............................................5
Environmental Considerations...........................................5
Anti-Takeover Provisions...............................................5
Use of Proceeds...............................................................5
Selling Stockholders..........................................................5
Plan of Distribution..........................................................6
Experts.......................................................................7
Legal Matters.................................................................7
Where You Can Find Available Information......................................8
Documents Incorporated by Reference...........................................8
No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities offered in any jurisdiction to
any person to whom it is unlawful to make such offer or solicitation, or in any
jurisdiction where such solicitation is not authorized, or in which the person
making such offer or solicitation is not qualified to do so. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company or that the information contained or incorporated by
reference herein is correct as of any time subsequent to its date.
2
THE COMPANY
The Company is a leading manufacturer of copper, brass, plastic, and
aluminum products. The range of these products is broad: copper tube and
fittings; brass and copper alloy rod, bar, and shapes; aluminum and brass
forgings; aluminum and copper impact extrusions; plastic fittings and valves;
refrigeration valves and fittings; and fabricated tubular products. Our plants
are located throughout the United States, and in Canada, France, and Great
Britain. We also own a short line railroad in Utah.
Our businesses are managed and organized into three segments: (i) Standard
Products Division ("SPD"); (ii) Industrial Products Division ("IPD"); and (iii)
Other Businesses. SPD manufactures and sells copper tube, copper and plastic
fittings, and valves. Outside of the United States, SPD manufactures copper tube
in Europe and copper fittings in Canada. SPD sells these products to wholesalers
in the HVAC (heating, ventilation, and air-conditioning), plumbing, and
refrigeration markets, and to distributors to the manufactured housing and
recreational vehicle industries. IPD manufactures and sells brass and copper
alloy rod, bar, and shapes; aluminum and brass forgings; aluminum and copper
impact extrusions; refrigeration valves and fittings; fabricated tubular
products; and gas valves and assemblies. IPD sells its products primarily to
original equipment manufacturers ("OEMs"), many of which are in the HVAC,
plumbing, and refrigeration markets. Other Businesses include Utah Railway
Company and other natural resource properties and interests. SPD and IPD account
for more than 98 percent of consolidated net sales and more than 86 percent of
consolidated net assets. The majority of our manufacturing facilities operated
at high levels during 2000, 1999 and 1998.
RISK FACTORS
PROSPECTIVE PURCHASERS OF THE COMMON STOCK SHOULD CONSIDER CAREFULLY THE
FOLLOWING FACTORS, AS WELL AS THE OTHER INFORMATION INCLUDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, IN EVALUATING AN INVESTMENT IN THE COMMON STOCK.
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS AND INCLUDES
ASSUMPTIONS CONCERNING THE COMPANY'S OPERATIONS, FUTURE RESULTS, AND PROSPECTS.
THESE FORWARD-LOOKING STATEMENTS ARE BASED ON CURRENT EXPECTATIONS AND ARE
SUBJECT TO RISK AND UNCERTAINTIES. IN CONNECTION WITH THE "SAFE HARBOR"
PROVISIONS OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995, THE COMPANY
PROVIDES THE FOLLOWING CAUTIONARY STATEMENT IDENTIFYING IMPORTANT ECONOMIC,
POLITICAL, AND TECHNOLOGICAL FACTORS, AMONG OTHERS, THE ABSENCE OF WHICH COULD
CAUSE ACTUAL RESULTS OR EVENTS TO DIFFER MATERIALLY FROM THOSE SET FORTH IN OR
IMPLIED BY THE FORWARD-LOOKING STATEMENTS AND RELATED ASSUMPTIONS.
SUCH FACTORS INCLUDE: (i) CONTINUATION OF THE CURRENT AND PROJECTED FUTURE
BUSINESS ENVIRONMENT, INCLUDING INTEREST RATES AND CAPITAL AND CONSUMER
SPENDING, (ii) A STRONG DOMESTIC HOUSING INDUSTRY ENVIRONMENT; (iii)
FLUCTUATIONS IN COMMODITY PRICES
3
(INCLUDING PRICES OF COPPER AND OTHER RAW MATERIALS); (iv) COMPETITIVE FACTORS
AND COMPETITOR RESPONSES TO THE COMPANY'S INITIATIVES; (v) SUCCESSFUL
IMPLEMENTATION AND COMPLETION OF MAJOR CAPITAL PROJECTS; (vi) STABILITY OF
GOVERNMENT LAWS AND REGULATIONS, INCLUDING TAXES; AND (vii) CONTINUATION OF THE
ENVIRONMENT TO MAKE ACQUISITIONS, DOMESTIC AND FOREIGN, INCLUDING REGULATORY
REQUIREMENTS AND MARKET VALUES OF CANDIDATES.
COMPETITIVE INDUSTRY
The Company's business is highly competitive. The principal bases of such
competition are customer service, product availability and price. No material
part of the Company's business depends upon a single customer or a small group
of related customers. We compete with various companies depending on the product
line. In the U.S. copper tubing business, the domestic competition includes
Cerro Copper Products Co., Inc., Reading Tube Corporation and Wolverine Tube,
Inc., as well as many actual and potential foreign competitors. In the European
copper tubing business, we compete with more than ten European-based
manufacturers of copper tubing as well as foreign-based manufacturers.
Additionally, our copper tube businesses compete with a large number of
manufacturers of substitute products made from plastic, iron and steel. In the
copper fittings market, competitors include Elkhart Products, a division of
Amcast Industrial Corporation, and NIBCO, Inc., as well as several foreign
manufacturers. The plastic fittings competitors include NIBCO, Inc., Charlotte
Pipe and Foundry and other companies.
COST OF RAW MATERIALS
The cost of copper and brass is the largest component of the Company's
variable costs of production. The cost of these materials is subject to global
market fluctuations caused by factors outside of our control. Significant
increases in the cost of metal, to the extent not reflected in prices for our
finished products, could materially and adversely affect our business, results
of operations and financial condition.
The Company occasionally enters into forward fixed-price contracts with
certain customers and may rely on futures or option contracts to hedge risks
associated with such arrangements. The Company may also use futures or option
contracts to manage price risk associated with metals inventory.
CYCLICALITY OF END-USE MARKETS
The Company's markets are cyclical and are significantly affected by
changes in general and local economic conditions, especially as they affect
housing starts, such as economic growth, employment, financing availability,
interest rates, consumer confidence and housing demand. Decreases in demand
associated with such conditions can reduce the prices which we can ask for our
products.
4
RELIANCE ON KEY MANAGEMENT
Our business requires managerial and operational expertise. Future success
will depend on our ability to retain and recruit talented management and skilled
employees, which is inherently uncertain.
ENVIRONMENTAL CONSIDERATIONS
The Company's operations are subject to environmental laws and regulations
governing air emissions, wastewater discharges, the handling, disposal and
remediation of hazardous wastes and employee health and safety. While the
current cost of environmental compliance does not have a material adverse effect
upon the Company, there can be no assurance that future costs of compliance will
not have a material adverse effect upon the Company's consolidated financial
condition, result of operations or cash flows.
Future environmental regulations, including those under the Clean Air Act,
are likely to impose additional requirements on the Company's business. See
"Businesses -- Environmental Matters" in the Company's Annual Report on Form
10-K for the fiscal year ended December 30, 2000 incorporated in this Prospectus
by reference.
ANTI-TAKEOVER PROVISIONS
The Company's Certificate of Incorporation and By-laws contain provisions
that could make more difficult the acquisition of the Company by means of a
tender offer, a proxy contest or otherwise. These provisions include advance
notice procedures for stockholders to submit proposals for consideration at
stockholders' meetings or to nominate persons for election as directors. The
Company is subject to Section 203 of the Delaware General Corporation Law, which
limits transactions between a publicly held company and "interested
stockholders" (generally, those stockholders who, together with their affiliates
and associates, own 15% or more of the Company's outstanding capital stock).
This provision of Delaware law also may have the effect of deterring some
acquisitions of the Company. In addition, the Company has entered into a
Shareholder Rights Plan which may have certain anti-takeover effects.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares
covered by this Prospectus.
SELLING STOCKHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by Selling Stockholders who may be
considered "affiliates" of the Company (or transferees thereof) and who have
acquired or may acquire such shares pursuant to the Option Agreements. The
Selling Stockholders named below may resell all, a portion or none of such
shares from time to time.
The table below sets forth, as of September 30, 2001: (i) the name of each
Selling Stockholder, (ii) his position(s) with the Company and its predecessor
or affiliates over the last
5
three years, (iii) the number of shares of Common Stock owned by each such
Selling Stockholder as of that date, (iv) the number of shares covered by this
Prospectus that may be sold for the account of such Selling Stockholder, and (v)
the number of shares and percentage of class that would be owned by each such
Selling Stockholder if all such registered shares were issued to and then sold
by the Selling Stockholders. If additional options or shares are granted to
Selling Stockholders, a Prospectus Supplement will be filed amending the
following table. None of the Selling Stockholders named in the table has any
position, office or other material relationship within the past three years with
the Company or any of its predecessors or affiliates, other than as described
below.
SHARES THAT WOULD BE
OWNED IF ALL SHARES
COVERED BY THIS
PROSPECTUS WERE SOLD
--------------------
NUMBER OF SHARES NUMBER OF SHARES
OWNED BEFORE THIS COVERED BY THIS PERCENT
NAME AND POSITION OFFERING(1) PROSPECTUS NUMBER OF CLASS (3)
----------------- ---------------- ------ ------------
Harvey L. Karp 3,634,000 3,600,000(2) 34,000 *
Chairman of the Board
William D. O'Hagan 646,298 646,298(2) 0 0
President and Chief
Executive Officer
O'Hagan Limited 28,838 28,838 0 0
Partnership
June O'Hagan 4,068 4,068 0 0
(1) Includes outstanding shares actually owned by the Selling Stockholders as
of September 30, 2001.
(2) Includes shares underlying options granted to the Selling Stockholders
under the Option Agreements as of September 30, 2001, without regard to
whether such options were currently exercisable or became exercisable
within 60 days after September 30, 2001.
(3) Calculated based on 33,425,554 shares of Common Stock outstanding as of
September 29, 2001 plus the additional shares that would be outstanding if
all options reflected in the second column of the table were exercised.
PLAN OF DISTRIBUTION
All of the shares covered by this Prospectus would be sold by the Selling
Stockholders. The Company would not receive any of the proceeds from such sales.
----------
* Less than 1%
6
The Company has been advised that the shares covered by this Prospectus may
be sold from time to time by the Selling Stockholders, or by any pledgee or
other successor in interest to the Selling Stockholders, in regular brokerage
transactions on the New York Stock Exchange or otherwise in the over-the-counter
market, in transactions directly with market makers, in privately negotiated
transactions, or through a combination of such methods, at market prices
prevailing at the time of sale or at negotiated prices.
The Selling Stockholders, or any pledgee or other successor in interest,
may sell shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholders, any such pledgee or other successor in interest, or
from the purchasers of shares for whom such broker-dealers may act as agent, or
to whom they sell as principal, or both (which compensation, as to a particular
broker-dealer, may be in excess of customary commissions). The Selling
Stockholders and any such dealers or agents that participate in the distribution
of the shares may be deemed to be underwriters within the meaning of the
Securities Act, and any profit on the sale of the shares by them and any
discounts, commissions or concessions received by them may be deemed to be
underwriting discounts and commissions under the Securities Act. Any such
dealers and agents may engage in transactions with, and perform services for,
the Company.
Certain expenses in connection with the registration of the shares under
the Securities Act, including fees and expenses of the Company's counsel and
accountants, filing fees and printing expenses, will be borne by the Company.
Each Selling Stockholder will bear his or her own legal and accounting expenses,
if any, as well as all transfer taxes, discounts, concessions, commissions or
other compensation paid to broker-dealers.
Any shares that qualify for resale pursuant to Rule 144 under the
Securities Act may be sold under that Rule rather than pursuant to this
Prospectus.
It is not certain that the Selling Stockholders will sell any or all of the
shares covered by this Prospectus.
EXPERTS
The consolidated financial statements and schedule of Mueller Industries,
Inc. incorporated by reference in the Company's Annual Report on Form 10-K for
the fiscal year ended December 30, 2000, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their reports thereon incorporated by
reference or included therein and incorporated herein by reference. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Willkie Farr & Gallagher, New York, New York.
7
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement under the Securities Act of 1933, as
amended, which registers the shares of Common Stock being offered by this
Prospectus. The Registration Statement, including its attached exhibits and
schedules, contains additional relevant information about us and the Common
Stock. The rules and regulations of the Commission allow us to omit certain
information included in the Registration Statement from this Prospectus. Such
additional information is available for inspection and copying at the offices of
the Commission.
We file annual, quarterly and current reports, proxy statements and other
information with the Commission. You may read and copy any reports, statements
or other information that we file at the Public Reference Room of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Information about
the Public Reference Room may be obtained by calling the Commission at
1-800-SEC-0330. Our public filings are also available from commercial document
retrieval services and at the Internet web site maintained by the Commission at
http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The Commission allows us to "incorporate by reference" information into
this Prospectus, which means that we can disclose important information to
investors by referring them to another document filed separately with the
Commission. The information incorporated by reference is deemed to be part of
this Prospectus, except for any information superseded by information contained
directly in this Prospectus. This Prospectus incorporates by reference the
documents set forth below that we have previously filed with the Commission.
These documents contain important information for investors.
The Company incorporates by reference the following documents:
(a) Its Annual Report on Form 10-K for the fiscal year ended December 30,
2000, filed pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) Its Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2001, June 30, 2001 and September 29, 2001, filed pursuant to the Exchange
Act.
(c) The description of the Common Stock, which is contained in our
Registration Statement on Form 8-A, File No. 1-6770, dated January 22, 1991,
filed pursuant to the Exchange Act, as amended by our Form 8, dated February 12,
1991.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14, or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the shares described in this Prospectus shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
that also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statements so
8
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, copies of any or all of the documents
which are incorporated by reference herein (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
such documents). Requests for such documents should be directed to Mueller
Industries, Inc., 8285 Tournament Drive, Suite 150, Memphis, Tennessee 38125,
Attention: John P. Fonzo, Vice President, General Counsel and Secretary.
9
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Commission by Mueller Industries,
Inc., a Delaware corporation (the "Company"), are incorporated by reference into
the Registration Statement:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 30, 2000, filed pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(b) The Company's quarterly reports on Form 10-Q for the fiscal quarters
ended March 31, 2001, June 30, 2001 and September 29, 2001, filed pursuant
to the Exchange Act.
(c) The description of the Company's Common Stock, which is contained in
the Company's Registration Statement on Form 8-A, File No. 1-6770, dated
January 22, 1991, filed pursuant to the Exchange Act, as amended by the
Company's Form 8, dated February 12, 1991.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of the filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
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. Robert B. Hodes, counsel to
Willkie Farr & Gallagher, is a non-employee director of the Company and is the
beneficial owner of 44,000 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertakes to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses (including attorneys' fees) which he actually and
reasonably incurred in connection therewith. The indemnification provided is not
deemed to be exclusive of any other rights to which an 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
2
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. Description of Exhibits
----------- -----------------------
5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as
to the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
3
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.
4
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, on this 1st
day of November, 2001.
MUELLER INDUSTRIES, INC.
By: /s/ Harvey L. Karp
---------------------
Harvey L. Karp
Chairman of the Board
5
POWER OF ATTORNEY
Each of the undersigned officers and directors of Mueller Industries, Inc.
hereby severally constitutes and appoints Harvey L. Karp and William D. O'Hagan
as the attorney-in-fact for the undersigned, in any and all capacities, with
full power of substitution, to sign any and all pre- or post-effective
amendments to this Registration Statement, any subsequent Registration Statement
for the same offering which may be filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and any and all pre- or post-effective
amendments thereto, and to file the same with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that each said attorney-in-fact may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Harvey L. Karp Chairman of the Board and November 1, 2001
----------------------- Director
Harvey L. Karp
/s/ William D. O'Hagan President, Chief Executive November 1, 2001
----------------------- Officer and Director
William D. O'Hagan (Principal Executive Officer)
/s/ Kent A. McKee Vice President and Chief November 1, 2001
----------------------- Financial Officer (Principal
Kent A. McKee Financial Officer and Principal
Accounting Officer)
/s/ Robert B. Hodes Director November 1, 2001
-----------------------
Robert B. Hodes
/s/ G.E. Manolovici Director November 1, 2001
-----------------------
G.E. Manolovici
/s/ Gary S. Gladstein Director November 1, 2001
-----------------------
Gary S. Gladstein
6
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
----------- ----------------------
5 Opinion of Willkie Farr & Gallagher, counsel to the Company, as
to the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page).