As filed with the Securities and Exchange Commission on February 25, 2005.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KMG CHEMICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Texas |
75-2640529 |
(State or Other Jurisdiction of Incorporation or organization) | (I.R.S. Employer Identification Number) |
10611 Harwin Drive, Suite 402, Houston, Texas | 77036 |
(Address of Principal Executive Offices) | (Zip Code) |
KMG Chemicals, Inc. 2004 Long-Term Incentive Plan (Full Title of the Plan) |
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David L. Hatcher Chief Executive Officer 10611 Harwin Drive, Suite 402 Houston, Texas 77036 (Name and address of Agent for Service) |
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(713) 988-9252 (Telephone Number, Including Area Code, of Agent for Service) |
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Copies to: | |
Charles D. Powell Haynes and Boone, LLP 1221 McKinney Street, Suite 2100 Houston, Texas 77010 (713) 547-2526 |
Roger C. Jackson General Counsel and Secretary KMG Chemicals, Inc. 10611 Harwin Drive, Suite 402 Houston, Texas 77036 (713) 988-9252 |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be Registered (1) |
Proposed Maximum Offering Price Per Share(2) |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||
---|---|---|---|---|---|---|---|---|
Common Stock, par value $0.01 per share | 375,000 shares | $8.24 | $3,090,000 | $364 | ||||
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 2. Registrant Information and Employee Plan Annual Information.*
*The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the KMG Chemicals, Inc. 2004 Long-Term Incentive Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such documents need not be filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Securities Act Rule 424. These documents, which include the statement of availability required by Item 2 of Form S-8 and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by us with the Commission pursuant to Section 13 of the Securities Exchange Act of 1934, are incorporated herein by reference:
All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered under the plan have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the 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 hereof to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Article 1302-7.06 of the Texas Miscellaneous Corporation Laws Act (the "Miscellaneous Laws") authorizes corporations to include a provision in their articles of incorporation limiting or eliminating the personal liability of directors to corporations or its shareholders for monetary damages for an act or omission in the director's capacity as a director. The Restated and Amended Articles of Incorporation of KMG Chemicals, Inc. (the "Company") limit the liability of directors to the fullest extent permitted by the Miscellaneous Laws. Specifically, directors of the Company shall not be liable except for:
The inclusion of this provision in the Restated and Amended Articles of Incorporation may have the effect of reducing the likelihood of derivative litigation against directors and may discourage or deter shareholders or management from bringing a lawsuit against directors for breach of their duty of care, even though such an action, if successful, might otherwise have benefited the Company and its shareholders.
Article 2.02-1 of the Texas Business Corporation Act (the "TBCA") provides that a corporation may indemnify any director or officer who was, is or is threatened to be made, a named defendant or respondent in a proceeding because he is or was a director or officer, provided that the director or officer (i) conducted himself in good faith, (ii) reasonably believed (a) in the case of conduct in his official capacity, that his conduct was in the corporation's best interests or (b) in all other cases, that his conduct was at least not opposed to the corporation's best interests and (iii) in the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Subject to certain exceptions, a director or officer may not be indemnified if the person is found liable to the corporation or if the person is found liable on the basis that he improperly received a personal benefit. Under Texas law, reasonable expenses incurred by a director or officer may be paid or reimbursed by the corporation in advance of a final disposition of the proceeding after the corporation receives a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification and a written undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that the director or officer is not entitled to indemnification by the corporation. Texas law requires a corporation to indemnify an officer or director against reasonable expenses incurred in connection with a proceeding in which he is named a defendant or respondent because he is or was a director or officer if he is wholly successful in defense of the proceeding.
The Company's Bylaws also provide for indemnification of its officers and directors, and the advancement to them of expenses in connection with proceedings and claims, to the fullest extent permitted under the TBCA.
Texas law permits a corporation to purchase and maintain insurance or another arrangement on behalf of any person who is or was a director or officer against any liability asserted against him and incurred by him in such a capacity or arising out of his status as such a person, whether or not the corporation would have the power to indemnify him against that liability under Article 2.02-1 of the TBCA. The Company maintains directors' and officers' liability insurance policies to cover certain liabilities of directors and officers arising out of claims based on certain acts or omissions by them in their capacity as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Exhibit Number |
Description |
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---|---|---|
4.1 |
Specimen of Common Stock Certificate, $0.01 par value, of the Company |
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4.2 |
Restated and Amended Articles of Incorporation of the Company (incorporated by reference to Exhibit 3(i) to our Registration Statement on Form 10-SB12G, filed with the Commission on December 6, 1996) |
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4.3 |
Articles of Amendment to Restated and Amended Articles of Incorporation of the Company (incorporated by reference to Exhibit 3(iii) to our Quarterly Report on Form 10-QSB filed with the Commission on December 12, 1997) |
|
4.4 |
Bylaws of the Company (incorporated by reference to Exhibit 3(ii) to our Registration Statement on Form 10-SB12G, filed with the Commission on December 6, 1996) |
|
5.1 |
Opinion of Haynes and Boone, LLP, counsel for the Company (filed herewith) |
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23.1 |
Consent of Deloitte & Touche LLP (filed herewith) |
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23.2 |
Consent of Haynes and Boone, LLP (included in Exhibit 5.1). |
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24.1 |
Powers of Attorney (included on signature page to this Registration Statement). |
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99.1 |
KMG Chemicals, Inc. 2004 Long-Term Incentive Plan (incorporated by reference to Appendix C of our Definitive Proxy Statement on Schedule 14A, filed with the Commission on October 22, 2004) |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and 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 us pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
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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 Houston, State of Texas, on February 25, 2005.
By: |
/s/ DAVID L. HATCHER David L. Hatcher Chief Executive Officer |
Each of the undersigned constitutes and appoints David L. Hatcher 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 this registration statement and any and all amendments to this registration statement (including post-effective amendments) and to file same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and/or any state securities department or any other federal or state agency or governmental authority granting unto such attorneys-in-fact and agents, and each of them, full power to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all extents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may do or cause to be done by virtue hereof.
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 |
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---|---|---|---|---|
/s/ DAVID L. HATCHER David L. Hatcher |
Director and Chief Executive Officer (Principal Executive Officer) |
February 25, 2005 |
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/s/ JOHN V. SOBCHAK John V. Sobchak |
Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
February 25, 2005 |
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/s/ GEORGE W. GILMAN George W. Gilman |
Director |
February 25, 2005 |
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/s/ FRED C. LEONARD III Fred C. Leonard III |
Director |
February 25, 2005 |
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/s/ CHARLES L. MEARS Charles L. Mears |
Director |
February 25, 2005 |
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/s/ CHARLES M. NEFF, JR. Charles M. Neff, Jr. |
Director |
February 25, 2005 |
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/s/ RICHARD L. URBANOWSKI Richard L. Urbanowski |
Director |
February 25, 2005 |
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Exhibit Number |
Description |
|
---|---|---|
4.1 |
Specimen of Common Stock Certificate, $0.01 par value, of the Company |
|
4.2 |
Restated and Amended Articles of Incorporation of the Company (incorporated by reference to Exhibit 3(i) to our Registration Statement on Form 10-SB12G, filed with the Commission on December 6, 1996) |
|
4.3 |
Articles of Amendment to Restated and Amended Articles of Incorporation of the Company (incorporated by reference to Exhibit 3(iii) to our Quarterly Report on Form 10-QSB filed with the Commission on December 12, 1997) |
|
4.4 |
Bylaws of the Company (incorporated by reference to Exhibit 3(ii) to our Registration Statement on Form 10-SB12G, filed with the Commission on December 6, 1996) |
|
5.1 |
Opinion of Haynes and Boone, LLP, counsel for the Company (filed herewith) |
|
23.1 |
Consent of Deloitte & Touche LLP (filed herewith) |
|
23.2 |
Consent of Haynes and Boone, LLP (included in Exhibit 5.1). |
|
24.1 |
Powers of Attorney (included on signature page to this Registration Statement). |
|
99.1 |
KMG Chemicals, Inc. 2004 Long-Term Incentive Plan (incorporated by reference to Appendix C of our Definitive Proxy Statement on Schedule 14A, filed with the Commission on October 22, 2004) |
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