As filed with the Securities and Exchange Commission on May 19, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NORANDA ALUMINUM HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 20-8908550 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 801 Crescent Centre Drive, Suite 600 Franklin, Tennessee |
37067 | |
| (Addresses of Principal Executive Offices) | (Zip Code) | |
Amended and Restated Noranda Aluminum Holding Corporation 2007 Long-Term Incentive Plan
2010 Incentive Award Plan
(Full title of the plan)
Robert B. Mahoney
Chief Financial Officer
801 Crescent Centre Drive, Suite 600
Franklin, TN 37067
(Name and address of agent for service)
(615) 771-5700
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
Calculation of Registration Fee
| Title of securities to be registered |
Amount to be registered(1) |
Proposed maximum offering price per share |
Proposed maximum price(2) |
Amount of registration fee(3) | ||||
| Amended and Restated Noranda Aluminum Holding Corporation 2007 Long-Term Incentive Plan - Common Stock, par value $.01 per share |
2,859,768 | $8 | $22,878,144 | $1,631.21 | ||||
| 2010 Incentive Award Plan - Common Stock, par value $.01 per share
|
5,200,000 | $8 | $41,600,000 | $2,966.08 |
| (1) | In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plans described herein. |
| (2) | Pursuant to Rule 457(c) and 457(h) under the Securities Act of 1933, as amended, the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated for the purpose of calculating the amount of the registration fee and are based on the price per share of common stock on the registrant’s initial public offering pursuant to its Registration Statement on Form S-1 (File No. 333-150760) initially filed with the Securities and Exchange Commission on May 8, 2008, as amended, relating to the initial public offering, equal to $8, on May 13, 2010. |
| (3) | The registrant previously paid a registration fee of $13,865.34 with a registration statement on Form S-1, File No. 333-150760, initially filed on May 8, 2008. Pursuant to Rule 457(p) of the Securities Act of 1933, $4,597.29 of the previously paid registration fee is offset against the registration fee otherwise due for this registration statement. |
EXPLANATORY NOTE
The purpose of this Form S-8 Registration Statement is to register an aggregate of 8,059,768 shares of Noranda Aluminum Holding Corporation (the “Company”) common stock, par value $0.01 per share (the “Common Stock”) which may be offered pursuant to the Amended and Restated Noranda Aluminum Holding Corporation 2007 Long-Term Incentive Plan and 2010 Incentive Award Plan (collectively, the “Plans”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of this Registration Statement on Form S-8 (the “Registration Statement”) is omitted from this filing in accordance with the provisions of Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the Plans covered by this Registration Statement as required by Rule 428(b)(1).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and Exchange Commission are incorporated by reference in this Registration Statement (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)):
| • | The Company’s final prospectus dated May 13, 2010 and filed with the Securities and Exchange Commission (the “Commission”) on May 14, 2010 pursuant to Rule 424(b)(4) under the Securities Act in connection with the Company’s registration statement on Form S-1 (File No. 333-150760); |
| • | The Company’s other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document listed in the first bullet above; |
| • | The description of the Company’s common stock contained in the Company’s Form 8-A, filed on May 11, 2010, and any subsequent amendment thereto filed for the purpose of updating such description; and |
| • | All other documents filed by the Company under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered have been sold or which deregisters all securities then remaining unsold. |
Any statement contained in this Registration Statement or a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document that is deemed to be incorporated by reference in this Registration Statement modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Company is a Delaware corporation. Section 145(a) of the General Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware corporation may 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
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right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him 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 cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue, or matter therein, he shall be indemnified against any expenses actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation may purchase and maintain insurance on behalf of a director, officer, employee or agent of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 145.
Article VIII of the Company’s Amended and Restated Certificate of Incorporation provides for the indemnification of directors, officers, employees or agents to the fullest extent permitted by the DGCL. Article VIII of the Company’s Amended and Restated Certificate of Incorporation also provides that, in any action initiated by a person seeking indemnification, the Company shall bear the burden of proof that the person is not entitled to indemnification.
Section 102(b)(7) of the DGCL provides that a Delaware corporation may, with certain limitations, set forth in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of a fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the registrant 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. Article VIII of the Company’s Amended and Restated Certificate of Incorporation includes such a provision.
Section 145(g) of the DGCL provides that a Delaware corporation has the power to purchase and maintain insurance on behalf of any director, officer, employee or other agent of the corporation or, if serving in such capacity at the request of the corporation, of another enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation has the power to indemnify such person against such liability under the DGCL. Article VIII of the Company’s Amended and Restated Certificate of
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Incorporation permits the Company to maintain insurance, at its expense, to protect it or any of its directors, officers, employees or agents or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the DGCL. The Company currently has such an insurance policy covering its directors and officers to insure against certain losses incurred by them.
The foregoing statements are subject to the detailed provisions of Sections 102(b)(7) and 145 of the DGCL, the full text of the Company’s Certificate of Incorporation and the full text of the Company’s Bylaws each, as amended.
Item 8. Exhibits
| Exhibit |
Description | |
| 4.1 | Amended and Restated Certificate of Incorporation of Noranda Aluminum Holding Corporation* | |
| 4.2 | Amended and Restated By-Laws of Noranda Aluminum Holding Corporation* | |
| 5.1 | Opinion of Wachtell, Lipton, Rosen & Katz* | |
| 23.1 | Consent of Ernst & Young LLP (Nashville)* | |
| 23.2 | Consent of Deloitte & Touche LLP (New Orleans)* | |
| 23.3 | Consent of Deloitte & Touche (Jamaica)* | |
| 23.4 | Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1)* | |
| 99.1 | Third Amended and Restated Noranda Aluminum Holding Corporation 2007 Long-Term Incentive Plan, dated April 16, 2010 (incorporated by reference to Exhibit 10.1 of Noranda Aluminum Holding Corporation’s Current Report on Form 8-K filed on April 21, 2010) | |
| 99.2 | 2010 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 of Noranda Aluminum Holding Corporation’s Current Report on Form 8-K filed on May 10, 2010) | |
| *Filed | herewith |
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;
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(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 the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of 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) of the Securities Act 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 in the effective 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 the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above 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 registrant 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 Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Franklin, State of Tennessee, on the 19th day of May, 2010.
| NORANDA ALUMINUM HOLDING CORPORATION | ||
| By: | /S/ LAYLE K. SMITH | |
| Name: | Layle K. Smith | |
| Title: | President and Chief Executive Officer | |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated below.
| Signature |
Title |
Date | ||
| /S/ LAYLE K. SMITH Layle K. Smith |
President, Chief Executive Officer and Director |
May 19, 2010 | ||
| /S/ ROBERT B. MAHONEY Robert B. Mahoney |
Chief Financial Officer |
May 19, 2010 | ||
| /S/ WILLIAM H. BROOKS William H. Brooks |
Director and Chairman of the Board of Directors |
May 19, 2010 | ||
|
Eric L. Press |
Director |
May 19, 2010 | ||
| Signature |
Title |
Date | ||
| /S/ GARETH TURNER Gareth Turner |
Director |
May 19, 2010 | ||
| /S/ M. ALI RASHID M. Ali Rashid |
Director |
May 19, 2010 | ||
| /S/ MATTHEW H. NORD Matthew H. Nord |
Director |
May 19, 2010 | ||
| /S/ MATTHEW R. MICHELINI Matthew R. Michelini |
Director |
May 19, 2010 | ||
| /S/ SCOTT KLEINMAN Scott Kleinman |
Director |
May 19, 2010 | ||
| /S/ ALAN H. SCHUMACHER Alan H. Schumacher |
Director |
May 19, 2010 | ||
| /S/ THOMAS R. MIKLICH Thomas R. Miklich |
Director |
May 19, 2010 | ||
| /S/ ROBERT KASDIN Robert Kasdin |
Director |
May 19, 2010 | ||
| Signature |
Title |
Date | ||
| /S/ RICHARD B. EVANS Richard B. Evans |
Director |
May 19, 2010 | ||
INDEX TO EXHIBITS
| Exhibit |
Description | |
| 4.1 | Amended and Restated Certificate of Incorporation of Noranda Aluminum Holding Corporation* | |
| 4.2 | Amended and Restated By-Laws of Noranda Aluminum Holding Corporation* | |
| 5.1 | Opinion of Wachtell, Lipton, Rosen & Katz* | |
| 23.1 | Consent of Ernst & Young LLP (Nashville)* | |
| 23.2 | Consent of Deloitte & Touche LLP (New Orleans)* | |
| 23.3 | Consent of Deloitte & Touche (Jamaica)* | |
| 23.4 | Consent of Wachtell, Lipton, Rosen & Katz (included in Exhibit 5.1)* | |
| 99.1 | Third Amended and Restated Noranda Aluminum Holding Corporation 2007 Long-Term Incentive Plan, dated April 16, 2010 (incorporated by reference to Exhibit 10.1 of Noranda Aluminum Holding Corporation’s Current Report on Form 8-K filed on April 21, 2010) | |
| 99.2 | 2010 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 of Noranda Aluminum Holding Corporation’s Current Report on Form 8-K filed on May 10, 2010) | |
| * | Filed herewith |