Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
KOPPERS HOLDINGS INC.
(Exact name of issuer as specified in its charter)
| Pennsylvania | 20-1878963 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 436 Seventh Avenue | ||
| Pittsburgh, Pennsylvania | 15219 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Koppers Holdings Inc.
2005 Long Term Incentive Plan
(Full title of the plan)
Steven R. Lacy, Esq.
Senior Vice President, Administration,
General Counsel and Secretary
Koppers Holdings Inc.
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219
Telephone: (412) 227-2001
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Jeffrey G. Aromatorio, Esq.
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219
Telephone: (412) 288-3364
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price2 |
Amount of registration fee | |||||||
| Common Stock, par value $0.01 per share |
2,089,448 | $ | 17.34 | $ | 36,231,028.32 | $ | 3,876.72 | ||||
| 1 | Together with an indeterminate number of additional shares that may be necessary to adjust the number of shares reserved for issuance under the Koppers Holdings Inc. 2005 Long Term Incentive Plan as a result of any future stock split, stock dividend or similar adjustment of the outstanding Common Stock. |
| 2 | Pursuant to Rules 457(h) and 457(c), the offering price of the shares covered by the registration statement is estimated solely for purposes of calculating the registration fee and is based on the average of the reported high and low sale prices for the registrant’s Common Stock on June 23, 2006. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Form S-8 Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the registrant with the Securities and Exchange Commission are incorporated by reference in this Registration Statement:
(a) The registrant’s latest annual report on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “1934 Act”);
(b) All other reports filed by the registrant pursuant to Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal year covered by the annual report on Form 10-K referred to in paragraph (a) above; and
(c) The description of the registrant’s Common Stock, $.01 par value, contained in the Registration Statement on Form 8-A, filed January 27, 2006, including any amendment or report filed for the purpose of updating such description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the filing of the annual report on Form 10-K referred to in paragraph (a) above and prior to the filing of a post-effective amendment which indicates that all 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 filing of such documents.
Notwithstanding the foregoing paragraphs, no information is incorporated herein by reference where such information under applicable Forms and regulations of the Securities and Exchange Commission is not deemed to be “filed” under Section 18 of the 1934 Act or otherwise subject to the liabilities of that section, unless the registrant has indicated in the report or filing containing such information that the information is to be considered “filed” under the 1934 Act or is to be incorporated by reference in this Registration Statement.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall 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 contemporaneously or subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
1. Pennsylvania Business Corporation Law. Sections 1741 and 1742 of the Pennsylvania Business Corporation Law (the “BCL”) provide that a business corporation shall have the power to indemnify any person who was or is a party, or is threatened to be made a party, to any proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person 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 or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such proceeding, if such person 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 proceeding, had no reasonable cause to believe his conduct was unlawful. In the case of an action by or in the right of the corporation, such indemnification is limited to expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless, and only to the extent that, a court determines upon application that, despite the adjudication of liability but in view of all the circumstances, such person is fairly and reasonably entitled to indemnity for the expenses that the court deems proper.
BCL Section 1744 provides that, unless ordered by a court, any indemnification referred to above shall be made by the corporation only as authorized in the specific case upon a determination that indemnification is proper in the circumstances because the indemnitee has met the applicable standard of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a majority vote of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, BCL Section 1743 provides that to the extent that a director, officer, employee or agent of a business corporation is successful on the merits or otherwise in defense of any proceeding referred to above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
BCL Section 1745 provides that expenses (including attorneys’ fees) incurred by an officer, director, employee or agent of a business corporation in defending any proceeding may be paid by the corporation in advance of the final disposition of the proceeding upon receipt of an undertaking to repay the amount advanced if it is ultimately determined that the indemnitee is not entitled to be indemnified by the corporation.
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BCL Section 1746 provides that the indemnification and advancement of expenses provided by, or granted pursuant to, the foregoing provisions is not exclusive of any other rights to which a person seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or directors or otherwise, and that indemnification may be granted under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise for any action taken or any failure to take any action whether or not the corporation would have the power to indemnify the person under any other provision of law and whether or not the indemnified liability arises or arose from any action by or in the right of the corporation, provided, however, that no indemnification may be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness.
BCL Section 1747 permits a Pennsylvania business corporation to purchase and maintain insurance on behalf of any person who 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 or other enterprise, against any liability asserted against such person and 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 the person against such liability under the provisions described above.
2. Articles of Incorporation Provision on Liability of Directors. The registrant’s articles of incorporation provide that the liability of directors for monetary damages shall be eliminated to the fullest extent permissible under Pennsylvania law.
3. Indemnification Bylaw. Article VII of the registrant’s Bylaws provides that the directors and officers of the registrant and certain other persons designated by the Board of Directors of the registrant shall be indemnified as of right in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the registrant or otherwise) arising out of their service to the registrant or to another enterprise at the request of the registrant, with certain limitations and exceptions.
Article VII of the registrant’s Bylaws also provides that the registrant may purchase and maintain insurance to protect itself and any director, officer, agent or employee entitled to indemnification under Article VII against any liability asserted against such person and incurred by such person in respect of the service of such person to the registrant.
As permitted by BCL Section 1713, the registrant’s Articles and Bylaws provide that no director shall be personally liable for monetary damages for any action taken, or failure to take any action, unless such director’s breach of duty or failure to perform constituted self-dealing, willful misconduct or recklessness or the director has breached or failed to perform the duties of his office under Title 15, Chapter 17, Subchapter E. The BCL states that this exculpation from liability does not apply to the responsibility or liability of a director pursuant to any criminal statute or the liability of a director for the payment of taxes pursuant to federal, state or local law. It may also not apply to liabilities imposed upon directors by the Federal securities laws. BCL Section 1715(d) creates a presumption, subject to exceptions, that a director acted in the best interests of the corporation. BCL Section 1712, in defining the standard of care a director owes to the corporation, provides that a director stands in a fiduciary relation to the corporation and must perform his duties as a director or as a member of any committee of the Board in good faith, in a manner he reasonably believes to be in the best interests of the corporation and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances.
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4. Director and Officer Liability Insurance. The registrant maintains directors’ and officers’ liability insurance covering its directors and officers with respect to liability which they may incur in connection with their serving as such, which liability could include liability under the Securities Act of 1933. Under the insurance, the registrant is entitled to reimbursement for amounts as to which the directors and officers are indemnified under the Bylaw indemnification provision. The insurance may also provide certain additional coverage for the directors and officers against certain liability even though such liability is not subject to foregoing Bylaw indemnification provision.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
An Exhibit Index, containing a list of all exhibits filed with this Registration Statement, is included on page II-8.
Item 9. Undertakings.
(a) Rule 415 offering.
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 of 1933 (the “1933 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. 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) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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)(1)(i) and (a)(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 the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “1934 Act”) that are incorporated by reference in the registration statement;
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(2) That, for the purpose of determining any liability under the 1933 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; and
(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) Filings incorporating subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the 1934 Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 1933 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 1933 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 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 Pittsburgh, Commonwealth of Pennsylvania, on the 29th day of June, 2006.
| KOPPERS HOLDINGS INC. | ||
| By: | /s/ Walter W. Turner | |
| Walter W. Turner President and Chief Executive Officer | ||
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 |
Capacity |
Date | ||
| /s/ Walter W. Turner Walter W. Turner |
President and Chief Executive Officer and Director (Principal Executive Officer) |
June 29, 2006 | ||
| /s/ Brian H. McCurrie Brian H. McCurrie |
Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
June 29, 2006 | ||
| * Robert Cizik |
Director |
June 29, 2006 | ||
| * David M. Hillenbrand |
Director |
June 29, 2006 | ||
| * Christian L. Oberbeck |
Director |
June 29, 2006 | ||
| * Clayton A. Sweeney |
Director |
June 29, 2006 | ||
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| Signature |
Capacity |
Date | ||
| * T. Michael Young |
Director |
June 29, 2006 | ||
| * By: | /s/ Brian H. McCurrie | |
| Name: Brian H. McCurrie | ||
| Title: Attorney-in-Fact | ||
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Exhibit Index
(Pursuant to Item 601 of Regulation S-K)
| Exhibit No. |
Description and Method of Filing |
Sequential Page | ||
| 4.1 | Amended and Restated Articles of Incorporation of Koppers Holdings Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s registration statement on Form S-1 (No. 333-128250)). | * | ||
| 4.2 | Bylaws of Koppers Holdings Inc. (incorporated by reference to Exhibit 3.2 to the registrant’s registration statement on Form S-1 (No. 333-128250)). | * | ||
| 4.2 | Koppers Holdings Inc. 2005 Long Term Incentive Plan (incorporated by reference to Exhibit 99.1 to the Form 8-K filed by the registrant on December 13, 2005 (No. 333-122810)). | * | ||
| 5.1 | Opinion of Reed Smith LLP, regarding the legality of shares of the registrant’s Common Stock being registered. | 10 | ||
| 23.1 | Consent of Reed Smith LLP (contained in the opinion filed as Exhibit 5.1 hereto). | |||
| 23.2 | Consent of Ernst & Young LLP, independent registered public accounting firm. | 11 | ||
| 24.1 | Powers of Attorney | 12 | ||
| * | Incorporated by reference. |
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Exhibit 5.1
June 27, 2006
Koppers Holdings Inc.
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219
| Re: |
Registration Statement on Form S-8 for Koppers Holdings Inc. 2005 Long Term Incentive Plan |
Gentlemen:
We have acted as counsel to Koppers Holdings Inc., a Pennsylvania corporation (the “Company”), in connection with the above-captioned Registration Statement (the “Registration Statement”) relating to up to 2,089,448 shares of Common Stock, par value $.01 per share, of the Company (the “Common Stock”) which may be purchased by or awarded to certain employees of the Company pursuant to the Company’s 2005 Long Term Incentive Plan (the “Plan”). In rendering our opinion below, we have assumed that any previously issued shares reacquired by the Company and reissued under the Plan will have been duly authorized, validly issued and fully paid at the time of their original issuance.
In connection with this opinion, we have examined, among other things:
(1) the Articles of Incorporation and Bylaws of the Company, as amended to date;
(2) actions taken by the Board of Directors of the Company on December 7, 2005 adopting the Plan and authorizing the issuance of up to 2,089,448 shares of Common Stock under the Plan;
(3) action taken by the shareholders of the Company on December 7, 2005 approving the adoption of the Plan; and
(4) the Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other documents, corporate proceedings, statutes, decisions and questions of law as we considered necessary in order to enable us to furnish this opinion, and subject to the assumptions set forth above, we are pleased to advise you that in our opinion the 2,089,448 shares of Common Stock being registered and which may be issued by the Company pursuant to the provisions of the Plan have been duly authorized, and upon such issuance in accordance with the provisions of the Plan such shares will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have not examined the laws of any jurisdiction other than the laws of the Commonwealth of Pennsylvania and federal laws of the United States of America and the foregoing opinion is limited to such laws.
We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the use of our name in the Prospectus under the caption “Legal Opinion.”
Yours truly,
REED SMITH LLP
JGA:HTF:RKM
NEW YORK ¨ LONDON ¨ LOS ANGELES ¨ PARIS ¨ SAN FRANCISCO ¨ WASHINGTON, D.C. ¨ PHILADELPHIA ¨ PITTSBURGH ¨ OAKLAND
MUNICH ¨ PRINCETON ¨ FALLS CHURCH ¨ WILMINGTON ¨ NEWARK ¨ MIDLANDS, U.K. ¨ CENTURY CITY ¨ RICHMOND ¨ LEESBURG
r e e d s m i t h . c o m
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Koppers Holdings Inc. 2005 Long Term Incentive Plan of our report dated February 10, 2006 with respect to the consolidated financial statements and schedule of Koppers Holdings Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2005, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
June 28, 2006
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors of Koppers Holdings Inc., a Pennsylvania corporation (the “Corporation”), hereby constitute and appoint Brian H. McCurrie and Steven R. Lacy, and each of them, the true and lawful agents and attorneys-in-fact of the undersigned, with full power and authority in said agents and attorneys-in-fact, and in either or both of them, to sign for the undersigned and in their respective names as directors of the Corporation any amendment or amendments to this Registration Statement on Form S-8 and the undersigned ratify and confirm all acts taken by such agents and attorneys-in-fact, or either or both of them, as herein authorized. This Power of Attorney may be executed in one or more counterparts.
| Signature |
Capacity |
Date | ||
| /s/ Walter W. Turner Walter W. Turner |
President and Chief Executive Officer and Director (Principal Executive Officer) |
June 21, 2006 | ||
| /s/ Brian H. McCurrie Brian H. McCurrie |
Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
June 21, 2006 | ||
| /s/ Robert Cizik Robert Cizik |
Director |
June 21, 2006 | ||
| /s/ David M. Hillenbrand David M. Hillenbrand |
Director |
June 21, 2006 | ||
| /s/ Christian L. Oberbeck Christian L. Oberbeck |
Director |
June 21, 2006 | ||
| /s/ Clayton A. Sweeney Clayton A. Sweeney |
Director |
June 21, 2006 | ||
| /s/ T. Michael Young T. Michael Young |
Director |
June 21, 2006 | ||