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As filed with the Securities and Exchange Commission on October 15, 1998
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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NL INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
New Jersey 13-5267260
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
16825 Northchase Drive, Suite 1200
Houston, Texas 77060
(Address of principal (Zip Code)
executive offices)
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NL INDUSTRIES, INC. 1998 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
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David B. Garten, Esq.
16825 Northchase Drive, Suite 1200
Houston, Texas 77060
(281) 423-3300
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of Amount offering aggregate
Securities to be price per offering Amount of
to be registered share price registration
registered (1) (2)(3) (2)(3) fee (3)
- ----------------- ------------ ------------ ------------ ------------
Common Stock, par
value $0.125 per
share 5,000,000 $13.3125 $66,562,500 $19,635.94
- --------------------------------------------------------------------------------
(1) Pursuant to Rule 416, additional shares of the registrant's common stock,
par value $0.125 per share (the "Common Stock") issuable pursuant to the
exercise of awards granted or to be granted under the plan in order to
prevent dilution resulting from any future stock split, stock dividend or
similar transaction are also being registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the registration
fee is based on 5,000,000 shares of Common Stock reserved for issuance
under the plan, at a price per share of $13.3125, which is the average of
the highest and lowest selling price per share of Common Stock on the New
York Stock Exchange, Inc. on October 13, 1998.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1997;
(2) all other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1997;
(3) the description of the common stock, par value $0.125 per share,
of the registrant (the "Common Stock") set forth in a registration
statement filed under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description;
and
(4) all documents filed by the registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
subsequent to the date of this registration statement shall be deemed to
be incorporated herein by reference and to be a part hereof from the date
of the filing of such documents until such time as there shall have been
filed a post-effective amendment that indicates that all securities
offered hereby have been sold or that deregisters all securities remaining
unsold at the time of such amendment.
Item 6. Indemnification of Directors and Officers.
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Sections 14A:2-7 and 14A:6-14 of the New Jersey Business Corporation Act
(the "BCA") permit a New Jersey corporation to limit the personal liability of
its directors in accordance with the provisions set forth therein.
Section 14A:3-5 of the New Jersey BCA contains provisions permitting New
Jersey corporations to indemnify corporate agents against expenses, including
reasonable costs, disbursements and counsel fees, and amounts paid or incurred
in satisfaction of settlements, judgments, fines and penalties in connection
with any proceeding involving the corporate agent by reason of his being or
having been such a corporate agent, other than a proceeding by or in the right
of the corporation. The indemnification and advancement of expenses provided by
or granted pursuant to Section 14A:3-5 does not exclude any other rights,
including the right to be indemnified against liabilities and expenses incurred
in proceedings by or in the right of the corporation, to which a corporate agent
may be entitled under a certificate of incorporation, by-law, agreement, vote of
shareholders, or otherwise, provided that no indemnification shall be made to or
on behalf of a corporate agent if a judgment or other final adjudication adverse
to the corporate agent establishes that his acts or omissions (a) were in breach
of his duty of loyalty to the corporation or its shareholders, (b) were not in
good faith or involved a knowing violation of law or (c) resulted in receipt by
the corporate agent of an improper personal benefit. Indemnification as
described above shall only be granted in a specific case upon a determination
that indemnification is proper in the circumstances because the corporate agent
has met the applicable standard of conduct. Such determination shall be made (a)
by the board of directors or a committee thereof, acting by a majority vote of a
quorum consisting of directors who are not parties to or otherwise involved in
such proceeding, (b) if such a quorum is not obtainable, or even if obtainable
and such quorum of the board of directors or committee by a majority vote of the
disinterested directors so directs, by independent legal counsel, in a written
opinion, such counsel to be designated by the board of directors; or (c) by the
shareholders of the corporation. Notwithstanding the foregoing, to the extent
that a corporate agent has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Subsections 14A:3-5(2) and
14A:3-5(3), or in defense of any claim, issue or matter therein, he shall be
indemnified against reasonable costs, disbursements and counsel fees in
connection therewith.
The by-laws of the registrant provide for indemnification of its
directors, officers, trustees, employees or agents to the
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fullest extent permitted by law against expenses and liabilities in connection
with any proceeding involving them by reason of their being or having been such
director, officer, trustee, employee or agent.
Item 8. Exhibits.
Reference is made to the Exhibit Index that immediately precedes the
exhibits filed with 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 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;
(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; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered that 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 (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 provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such
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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 of 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
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 Houston, Texas, on October 15, 1998:
NL INDUSTRIES, INC.
By: /s/ Dennis G. Newkirk
Vice President & Controller
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Dennis G. Newkirk and David B. Garten,
and each of them, his true and lawful attorneys-in-fact and agents with full
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, and to file the same
with all exhibits, thereto, and all 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 might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
--------- ----- ----
/s/ Harold C. Simmons Chairman of the Board and October 15, 1998
- --------------------- Director (Principal
Harold C. Simmons Executive Officer)
/s/ J. Landis Martin President and Chief October 15, 1998
- --------------------- Executive Officer and
J. Landis Martin Director
/s/ Susan E. Alderton Vice President, Chief October 15, 1998
- --------------------- Financial Officer and
Susan E. Alderson Treasurer (Principal
Financial Officer)
/s/ Joseph S. Compofelice Director October 15, 1998
- -------------------------
Joseph S. Compofelice
/s/ Dennis G. Newkirk Vice President and October 15, 1998
- --------------------- Controller (Principal
Dennis G. Newkirk Accounting Officer)
/s/ Dr. Lawrence A. Wigdor Executive Vice President October 15, 1998
- -------------------------- and Director
Dr. Lawrence A. Wigdor
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
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4.1 Amended and Restated Certificate of Incorporation dated June 28,
1990 (incorporated by reference to Exhibit 1 to the Registrant's
Proxy Statement on Schedule 14A for the annual meeting held on
June 28, 1990).
4.2 By-laws of the Registrant, as amended June 28, 1990 (incorporated
by reference to Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1990).
4.3 NL Industries, Inc. 1998 Long-Term Incentive Plan (incorporated by
reference to Registrant's Proxy Statement on Schedule 14A for the
annual meeting held on May 6, 1998).
5.1* Opinion of Bartlit Beck Herman Palenchar & Scott
23.1 Consent of Bartlit Beck Herman Palenchar & Scott (included in
opinion filed as Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers L.L.P.
24.1 Power of Attorney (see the initial signature page of this
registration statement).
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* Filed herewith.
EXHIBIT 5.1
October 13, 1998
The Board of Directors of NL Industries, Inc.
16825 Northchase Drive
Suite 1200
Houston, Texas 77060
Re: Registration Statement on Form S-8 Relating to 5,000,000 Shares
of Common Stock of NL Industries, Inc. Available for Issuance
under the NL Industries, Inc. 1998 Long-Term Incentive Plan
Ladies and Gentlemen:
We have acted as counsel for NL Industries, Inc., a New Jersey corporation
(the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on October 16, 1998 under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
Company's 5,000,000 shares (the "Shares") of common stock, par value $0.125 per
share (the "Common Stock"), available for issuance under the NL Industries, Inc.
1998 Long-Term Incentive Plan (the "Plan").
A. Basis of Opinions
As the basis for the opinions expressed in this letter, we have examined
and considered originals, or copies certified or otherwise identified to our
satisfaction, of such documents, corporate records, and instruments as we have
deemed necessary or appropriate for the expression of such opinions, including,
without limitation, the following:
(1) the Restated Certificate of Incorporation and by-laws of the
Company, both as amended to date;
(2) the minutes and records of the corporate proceedings of the Company
with respect to the establishment of the Plan and related matters;
(3) the Plan; and
(4) the Registration Statement.
B. Opinions
Based upon the foregoing, having regard for such legal considerations as
we have deemed relevant, and subject to the comments, assumptions, limitations,
qualifications and exceptions set forth in Section C, we are of the opinion
that:
(1) the issuance of the Shares has been duly authorized; and
(2) the Shares, when issued, will be validly issued, fully paid and
nonassessable.
C. Comments, Assumptions, Limitations, Qualifications and Exceptions
The opinions expressed in Section B above are based upon and subject to
the further comments, assumptions, limitations, qualifications and exceptions as
set forth below.
(1) We have assumed, without investigation, the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals, the conformity to authentic originals of all documents
submitted to us as copies and the veracity of all such documents.
(2) We have assumed that (a) all awards issued under the Plan ("Awards")
will be duly granted in accordance with the terms of the Plan and
all Shares issued in connection with the Plan will be duly issued in
accordance with the terms of the Plan and any agreements evidencing
Awards; (b) the Company will maintain an adequate number of
authorized but unissued shares and/or treasury shares of Common
Stock available for issuance pursuant to the Plan; and (c) the
consideration actually received by the Company (or the increase in
the Company's capital on the books of the Company, if applicable)
for each issued Share is equal to or exceeds the par value thereof.
(3) The law covered by the opinions expressed in this letter is limited
to the federal law of the United States, the New Jersey Business
Corporation Act, as amended, and the law of the state of Colorado.
(4) Except as set forth in subsection C.5 below, the opinions set forth
herein are expressed solely for your benefit, and no other party
shall be entitled to rely on our opinions without our prior express
written consent. Without our prior express written consent, this
opinion letter may not be quoted in whole or in part or otherwise
referred to in any document or report and may not be furnished to
any person or entity, except as set forth in subsection C.5 below.
(5) We consent to the filing of this letter as an exhibit to the
Registration Statement and to reference to our opinions included in
or made a part of the Registration Statement. In giving this
consent, we do not admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act or
the rules and regulations promulgated thereunder.
Respectfully submitted,
/s/ Bartlit Beck Herman Palenchar &
Scott
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 with respect to the 1998 Long-Term Incentive Plan of NL Industries,
Inc. (the "Company") of our report dated February 11, 1998, which includes an
explanatory paragraph for the 1997 change in accounting for environmental
remediation costs in accordance with Statement of Position 96-1, on our audits
of the consolidated financial statements and financial statement schedules of
the Company as of December 31, 1996 and 1997, and for each of the three years in
the period ended December 31, 1997, which report is included in the Company's
annual report on Form 10-K filed March 23, 1998.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
October 13, 1998