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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.
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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
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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.
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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
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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
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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
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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