As filed with the Securities and Exchange Commission on May 5, 2006
Registration No.333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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NORTH AMERICAN GALVANIZING & COATINGS, INC.
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(Exact name of issuer as specified in its charter)
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Delaware 71-0268502
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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5314 South Yale Avenue, Suite 1000
Tulsa, Oklahoma 74135
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(Address of principal executive offices) (Zip Code)
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2004 Incentive Stock Plan
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Beth B. Hood
North American Galvanizing & Coatings, Inc.
5314 South Yale Avenue, Suite 1000
Tulsa, Oklahoma 74135
(918) 494-0964
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF AMOUNT MAXIMUM PROPOSED AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE* OFFERING PRICE* FEE*
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Common Stock
($.10 par value) [1,798,333**] [$5.84] [$10,502,264] [$1,124]
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* Estimated pursuant to rule 457(c).
**Includes an indeterminate number of shares of Common Stock that may become
issuable pursuant to the antidilution provisions of such Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information required by Item I of Form S-8 will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"). Such documents are not required to
be and are not filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by reference in
Item 3 of Part II of this Registration Statement, any of the other documents
required to be delivered to Plan participants pursuant to Rule 428(b), and any
additional information about the Plan and its administrators are available
without charge by contacting:
North American Galvanizing & Coatings, Inc.
5314 South Yale Avenue, Suite 1000
Tulsa, Oklahoma 74135
(918) 494-0964
Beth B. Hood, Vice President
and Chief Financial Officer
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Commission by the Company
(Commission File No. 001-03920) for purposes of the information reporting
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 2005.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2006.
3. The Company's Proxy Statement for its 2006 Annual Meeting of
Shareholders as filed with the Commission on March 29, 2006.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-3 filed with the Commission on
October 4, 1996.
All documents filed by the Company 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 hereby 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 a document incorporated or deemed to be incorporated
herein by reference will 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 herein
by reference 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 hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law authorizes
the inclusion of a provision in the certificate of incorporation of a Delaware
corporation to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit the
liability of a director: (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) for willful or negligent conduct in paying dividends or repurchasing stock
out of other than lawfully available funds; or (iv) for any transaction from
which the director receives an improper personal benefit. This provision
pertains only to breaches of duty by directors in their capacity as directors
(and not in any other corporate capacity, such as officers). The Company's
Restated Certificate of Incorporation, as amended (the "Certificate"),
exonerates the Company's directors from monetary liability to the fullest extent
permitted by this statutory provision.
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Section 145 of the Delaware General Corporation Law authorizes a
Delaware corporation to indemnify its officers, directors, employees or agents
for attorneys' fees and other expenses as well as judgments or amounts paid in
settlement in civil cases. The person seeking indemnification must have acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation in respect to the claim made against
him or her. In criminal cases, the person seeking indemnification may be
indemnified for fines and costs provided that, in addition to the foregoing
standard of conduct, he or she did not have a reasonable cause to believe his or
her conduct was unlawful. Section 145 also permits a Delaware corporation to
indemnify its directors, officers, agents and employees for expenses and
attorneys' fees (not judgments) in actions brought by or in the right of the
corporation, except that it does not permit such indemnification for any claim
as to which such person is adjudged to be liable to the corporation, unless the
court determines otherwise. Section 145 requires a Delaware corporation to
indemnify any director, officer, employee or agent of the corporation to the
extent he or she has been successful on the merits or otherwise in defense of
any action, lawsuit or proceeding, or in defense of any claim, issue or matter
therein, for expenses, including attorneys' fees, actually and reasonably
incurred in connection with that defense.
In addition to such rights as they may be provided by law, the
Certificate and the Company's Amended and Restated Bylaws (the "Bylaws") provide
broad indemnification rights to directors, officers, employees and agents of the
Company and its subsidiaries with respect to various civil and criminal
liabilities and losses which may be incurred by such director, officer, agent or
employee pursuant to any pending or threatened litigation or other proceedings,
to the fullest extent permitted under the Delaware General Corporation Law. The
Company is also obligated under the Certificate and the Bylaws to advance
payment of expenses incurred by directors, officers, employees and agents of the
Company or its subsidiaries which are incurred by any such person in defending a
proceeding brought by reason of the fact that he or she is or was a director,
officer, employee or agent of the Company or its subsidiaries, provided that he
or she provides an undertaking to the Company to repay any such advances if it
is ultimately determined that he or she is not entitled to indemnification. Any
amendment or other modification to the Certificate or Bylaws which limits or
otherwise adversely affects the rights to indemnification currently provided
shall apply only to proceedings based upon actions and events occurring after
such amendment and delivery of notice thereof to the indemnified parties.
The Company has entered into separate indemnification agreements with
each of its directors and certain of its officers and employees, whereby the
Company has agreed, among other things, to provide for indemnification and
advancement of expenses in a manner and subject to terms and conditions similar
to those set forth in the Bylaws. These agreements may not be abrogated by
action of the stockholders.
The Company has a standard policy of directors' and officers' liability
insurance covering directors, officers, employees and agents of the Company and
its subsidiaries with respect to liabilities incurred as a result of their
service in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Title
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4.1 2004 Incentive Stock Plan (As Amended and Restated)
4.2 Director Stock Unit Program (As Amended and Restated)
5.1 Opinion of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.
15 Awareness Letter
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.
(included in Exhibit 5.1)
24.1 Power of Attorney (included in signatures)
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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 to;
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) 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 a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
(iii) include any additional or changed 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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) or the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
(A) Each prospectus filed by the Registrant pursuant to Rule
424(b)(3) shall be deemed to be part of this Registration Statement as of the
date the filed prospectus was deemed part of and included in this Registration
Statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of this Registration Statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x) for the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in this
Registration Statement as of
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the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of this Registration Statement
relating to the securities in this Registration Statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. PROVIDED, HOWEVER, that no
statement made in a document incorporated or deemed incorporated by reference
into this Registration Statement or prospectus that is part of this Registration
Statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in this
Registration Statement or prospectus that was part of this Registration
Statement or made in any such document immediately prior to such effective date;
or
(ii) If the Registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of this Registration Statement relating to
an offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in this Registration Statement as of the date it is first used
after effectiveness. PROVIDED, HOWEVER, that no statement made in this
Registration Statement or prospectus that is part of this Registration Statement
or made in a document incorporated or deemed incorporated by reference into this
Registration Statement or prospectus that is part of this Registration Statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in this Registration Statement
or prospectus that was part of this Registration Statement or made in any such
document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this Registration
Statement regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser.
(i) Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used or referred to by
the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating
to the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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 Tulsa, State of Oklahoma on the 5th day of May, 2006.
NORTH AMERICAN GALVANIZING & COATINGS, INC.
By: /s/ Beth B. Hood
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Name: Beth B. Hood
Title: Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Beth B. Hood and Ronald J. Evans and each
of them singly, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities (including his or her capacity
as a director or officer of North American Galvanizing & Coatings, Inc.) to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
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 or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
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.
/s/ Ronald J. Evans President, Chief Executive Dated: May 5, 2006
------------------------- Officer (principal executive
Ronald J. Evans officer) and Director
/s/ Beth B. Hood Vice President, Chief Financial Dated: May 5, 2006
------------------------- Officer (principal financial and
Beth B. Hood accounting officer) and Secretary
/s/ Linwood J. Bundy Director Dated: May 5, 2006
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Linwood J. Bundy
/s/ John H. Sununu Director Dated: May 5, 2006
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John H. Sununu
/s/ Joseph J. Morrow Director Dated: May 5, 2006
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Joseph J. Morrow
/s/ Patrick J. Lynch Director Dated: May 5, 2006
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Patrick J. Lynch
/s/ Gilbert L. Kleman, II Director Dated: May 5, 2006
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Gilbert L. Kleman, II
/s/ Frank H. Menaker, Jr. Director Dated: May 5, 2006
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Frank H. Menaker, Jr.
/s/ T. Stephen Gregory Director Dated: May 5, 2006
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T. Stephen Gregory
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