s8.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Globe Specialty Metals, Inc.
(Exact name of Registrant as specified in its charter)
| |
|
|
|
Delaware
|
|
20-2055624
|
| |
|
|
|
(State or other jurisdiction
of incorporation or organization)
|
|
I.R.S. Employer
Identification No.
|
One Penn Plaza
250 West 34th Street, Suite 4125
New York, New York 10119
(212) 798-8122
(Address and telephone number of Registrant’s
principal executive offices)
2006 Employee, Director and Consultant Stock Plan
(Full Title of the Plan)
Jeff Bradley, Chief Executive Officer
One Penn Plaza
250 West 34th Street, Suite 4125
New York, New York 10119
(Name and address of agent for service)
(212) 798-8122
(Telephone number, including area code, of agent for service)
The Commission is requested to send copies of all communications to:
Jeffrey E. Jordan, Esq.
Arent Fox LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
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. (Check one):
| |
|
|
|
|
|
|
|
Large accelerated filer o
|
|
Accelerated filer o
|
|
Non-accelerated filer þ
(Do not check if a smaller reporting company)
|
|
Smaller reporting company o
|
CALCULATION OF REGISTRATION FEE
| |
|
Title of securities to be registered
|
Amount to be registered(1)
|
Proposed maximum offering price per share
|
Proposed maximum aggregate offering price
|
Amount of
registration fee
|
|
Common Stock, $.0001 par value
|
|
|
|
|
|
To be issued under the 2006 Employee, Director and Consultant Stock Plan
|
1,000,000 |
$22.695 (2) |
$22,695,000 |
$2,634.89 |
|
Total
|
|
|
|
$2,634.89 |
| |
|
(1)
|
Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement also covers an additional indeterminable number of shares as may be necessary to adjust the number of shares being offered or issued pursuant to the plans as a result of stock splits, stock dividends or similar transactions.
|
| |
|
|
(2)
|
Pursuant to Rule 457(c) and (h), based on the average of the high and low prices of the Common Stock reported in the consolidated reporting system as of February 28, 2011, which is within five business days prior to the date of the filing of this Registration Statement.
|
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
| |
|
|
|
| |
|
|
|
|
*
|
|
Information required by Part I to be contained in a Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933 (the “Securities Act”) and the Note to Part I of Form S-8.
|
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated by reference in this Registration Statement:
1. The Registrant’s Annual Report on Form 10-K for the fiscal year ended June 30, 2010, as amended.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) since the end of the fiscal year ended June 30, 2010.
3. Registrant’s Form 8-A Registration Statement filed pursuant to Section 12 of the Exchange Act, containing a description of the Registrant’s shares of beneficial interest (“Shares”), including any amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the SEC, including any information furnished pursuant to Items 2.02 or 7.01 of Form 8- K or certain exhibits furnished pursuant to Item 9.01 of Form 8-K.
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 Registrant’s certificate of incorporation and bylaws provide that each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or an officer of Globe Specialty Metals, Inc. or is or was serving at the Registrant’s request as a director, officer, or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, whether the basis of such proceeding is alleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Registrant to the fullest extent authorized by the Delaware General Corporation Law against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such.
Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, Article Eighth of the Registrant’s certificate of incorporation eliminates the liability of a director to the Registrant for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
| |
•
|
from any breach of the director’s duty of loyalty to the Registrant;
|
| |
|
| |
•
|
from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
|
| |
|
| |
•
|
under Section 174 of the Delaware General Corporation Law; and
|
| |
|
| |
•
|
from any transaction from which the director derived an improper personal benefit.
|
The Registrant carries insurance policies insuring its directors and officers against certain liabilities that they may incur in their capacity as directors and officers. In addition, the Registrant expects to enter into indemnification agreements with each of its directors and executive officers.
Item 7. Exemption from Registration Claimed
Not applicable.
See Exhibit Index on page 4.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this Registrant 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 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 this 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% 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 this Registration Statement or any material change to such information in this Registration Statement;
provided, however , that the undertakings set forth in paragraphs (1)(i) and (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 Registrant hereby further 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 (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.
(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, unless in the opinion of its counsel the matter has been settled by controlling precedent, will 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.
Pursuant to the requirements of the Securities Act, 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 New York, State of New York, on the second day of March, 2011.
| |
|
|
|
|
| |
GLOBE SPECIALTY METALS, INC.
|
|
| |
By:
|
/s/ Malcolm Appelbaum
|
|
| |
|
Malcolm Appelbaum, Chief Financial Officer
|
|
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Alan Kestenbaum, Jeff Bradley, Malcolm Appelbaum and Stephen Lebowitz and each of them his true and lawful attorney-in-fact and agent with power of substitution and resubstitution, for him, and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Commission, granting unto said attorney-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 to comply with the provisions of the Securities Act and all requirements of the Commission, hereby ratifying and confirming all that said attorney-in-fact or any of them, or their or his or her substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated:
| |
|
|
|
|
|
Signatures
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/ Alan Kestenbaum
|
|
Director, Executive Chairman
|
|
March 2, 2011
|
| Alan Kestenbaum |
|
|
|
|
| |
|
|
|
|
|
/s/ Jeff Bradley
|
|
Chief Executive Officer and Principal Executive Officer
|
|
|
| Jeff Bradley |
|
|
|
|
| |
|
|
|
|
|
/s/ Malcolm Appelbaum
|
|
Chief Financial Officer and Principal Accounting Officer
|
|
|
|
Malcolm Appelbaum
|
|
|
|
|
| |
|
|
|
|
|
|
|
Director
|
|
|
|
Stuart E. Eizenstat
|
|
|
|
|
| |
|
|
|
|
|
/s/ Franklin Lavin
|
|
Director |
|
|
|
Franklin Lavin
|
|
|
|
|
| |
|
|
|
|
| /s/ Donald Barger |
|
Director |
|
March 2, 2011
|
|
Donald Barger
|
|
|
|
|
| |
|
|
|
|
| /s/ Thomas Danjczek |
|
Director |
|
March 2, 2011
|
|
Thomas Danjczek
|
|
|
|
|
Exhibit
| 4.1 |
2006 Employee, Director and Consultant Stock Plan* |
| 4.2 |
Amendments to 2006 Employee, Director and Consultant Stock Plan** |
| |
|
|
|
5.1
|
Opinion of Arent Fox LLP
|
| |
|
|
23.1
|
|
|
23.2
|
Consent of Arent Fox LLP (counsel): included in exhibit 5.1 |
| |
|
| 24.1 |
Power of Attorney: included on signature page |
| |
|
|
*
|
Incorporated by reference to Exhibit 10.1 filed with the Registrant’s registration statement on Form S-1 (Registration No. 333-152513) filed on July 25, 2008.
|
|
**
|
Incorporated by reference to Exhibit 10.3 filed with the Registrant’s quarterly report on Form 10-Q filed on February 11, 2011
|