sv8
As filed
with the Securities and Exchange Commission on March 26, 2007
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
NEWPARK RESOURCES, INC.
(Exact name of registrant as specified in its charter)
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| Delaware
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72-1123385 |
| (State or other jurisdiction of
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(I.R.S. Employer |
| incorporation or organization)
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Identification No.) |
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| 2700 Research Forest Drive, Suite 100 |
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| The Woodlands, Texas
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77381 |
| (Address of principal executive offices)
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(Zip Code) |
NEWPARK RESOURCES, INC.
2006 EQUITY INCENTIVE PLAN
NEWPARK RESOURCES, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN (AS AMENDED)
AWARDS OF RESTRICTED STOCK TO PAUL L. HOWES, JAMES E. BRAUN AND MARK J. AIROLA
AWARDS OF STOCK OPTIONS TO PAUL L. HOWES AND SEAN MIKAELIAN
(Full title of the plan)
Paul L. Howes
Chief Executive Officer and President
Newpark Resources, Inc.
2700 Research Forest Drive, Suite 100
The Woodlands, Texas 77381
(Name and address of agent for service)
(281) 465-6800
(Telephone number, including area code, of agent for service)
Copy to:
Bertram K. Massing, Esq.
Ervin, Cohen & Jessup, LLP
9401 Wilshire Boulevard, 9th Floor
Beverly Hills, CA 90212
(310) 273-6333
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Amount to be |
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maximum |
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maximum |
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Amount of |
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registered |
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offering price |
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aggregate |
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registration |
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Title of securities to be registered |
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(1)(2) |
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per share (3) |
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offering price (3) |
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fee |
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Common Stock issuable under the
2006 Equity Incentive Plan |
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2,000,000 shares |
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$6.87 |
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$13,764,000 |
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$422.55 |
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Common Stock issuable under the
1999 Employee Stock Purchase Plan
(As Amended) |
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500,000 shares |
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$6.87 |
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$3,435,000 |
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$105.45 |
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Common Stock granted as restricted
stock |
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200,000 shares |
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$8.08 |
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$1,616,000 |
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$49.61 |
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Common Stock granted as restricted
stock |
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100,000 shares |
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$5.12 |
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$512,000 |
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$15.72 |
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Common Stock granted as restricted
stock |
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100,000 shares |
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$5.60 |
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$560,000 |
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$17.19 |
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Common Stock issuable upon exercise
of stock options |
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375,000 shares |
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$8.08 |
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$3,030,000 |
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$93.02 |
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Common Stock issuable upon exercise
of stock options |
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25,000 shares |
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$5.75 |
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$143,750 |
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$4.41 |
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Total |
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3,300,000 shares |
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$23,060,750 |
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$707.95 |
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| (1) |
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The 200,000 shares of Common Stock being registered hereunder reflect a grant of shares of
time-restricted stock to Paul L. Howes. Each of the 100,000 shares of Common Stock being
registered hereunder reflect a grant of time-restricted stock to each of James E. Braun and
Mark J. Airola. The 375,000 shares of Common Stock being registered hereunder are reserved
for issuance pursuant to stock options granted to Paul L. Howes. The 25,000 shares of Common
Stock being registered hereunder are reserved for issuance pursuant to stock options granted
to Sean Mikaelian. The awards granted to Messrs. Howes, Braun, Airola and Mikaelian as set
forth in this footnote are collectively referred to as the “Awards.” |
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| (2) |
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”),
the number of shares registered under this registration statement will automatically be
increased to cover any additional shares of the registrant’s Common Stock that become issuable
under the 2006 Equity Incentive Plan, the 1999 Employee Stock Purchase Plan, as amended, or
the Awards by reason of any stock split, stock dividend, recapitalization or other similar
transaction. |
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| (3) |
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Calculated pursuant to Rule 457(h)(1) of the Securities Act based on (i) the sum of the
products obtained by adding (1) the product of 80,000 shares (the number of shares of Common
Stock registered hereby as to which options have been granted to Paul
L. Howes but not exercised under the 2006
Equity Incentive Plan) multiplied by $7.17 (the exercise price of such options) and
(2) the average of the high and low sales prices of the registrant’s common stock on March 19,
2007, as reported by the New York Stock Exchange ($6.87); (ii) $8.08 per share with respect
to the 200,000 shares of time-restricted stock granted to Paul L. Howes; (iii) $5.60 per share with respect to 100,000 shares of
time-restricted stock granted to James E. Braun; (iv) $5.12 per share with respect to 100,000
shares of time-restricted stock granted to Mark J. Airola; (v) $8.08 per share exercise price
with respect to the options to purchase 375,000 shares of Common
Stock granted to Paul L. Howes; and (vi) $5.75 per
share exercise price with respect to the options to purchase 25,000 shares of Common Stock
granted to Sean Mikaelian. |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All 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, and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Newpark Resources, Inc. (“Newpark”) hereby incorporates by reference into this registration
statement the following documents:
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(a) |
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Newpark’s Annual Report on Form 10-K for the year ended December 31, 2006; |
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Newpark’s Current Reports on Form 8-K filed on January 4, 2007, February 15,
2007, March 9, 2007 and March 13, 2007; and |
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(d) |
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The description of the Common Stock of Newpark contained in its registration
statement filed pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), as such description may be amended from time to time. |
All reports and other documents filed by Newpark subsequent to the date of this registration
statement 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 hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference into this registration statement and to be part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the “GCL”) permits a
corporation to, and the registrant’s Amended and Restated Bylaws (the “Bylaws”) require that it,
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by reason of the fact
that he 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,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding if he 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 action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
As permitted under Section 145 of the GCL, the Bylaws also provide that it shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he 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, partnership, joint venture, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation. However, in such an
action by or on behalf of a corporation, no indemnification may be made in respect of any claim,
issue or matter as to which the person is adjudged liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to the extent that the court determines
that, despite the adjudication of liability but in view of all the circumstances, the person is
fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
In addition, the indemnification provided by section 145 shall not be deemed exclusive of any
other rights to which a person seeking indemnification may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. The indemnification shall
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his heirs, executors and administrators.
The registrant’s Restated Certificate of Incorporation (the “Certificate”) provides that the
registrant shall indemnify, to the fullest extent permitted by law, each of its officers,
directors, employees and agents who was or is a party to, or is threatened to be made a party to,
any threatened, pending or completed action, suit or 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 registrant. The Certificate also provides that, to the fullest
extent permitted by law, no director of the registrant shall be liable to the registrant or its
stockholders for monetary damages for breach of his fiduciary duty as a director.
The Certificate also provides that the registrant may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the registrant, or is
serving at the request of the registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against
any liability incurred by such person in any such capacity, or arising out of his status as such,
regardless of whether the registrant is empowered to indemnify such person under the provisions of
law. The registrant currently maintains this insurance for its directors, officers, employees and
agents.
Section 102(b)(7) of the GCL provides that a certificate of incorporation may include a
provision which eliminates or limits the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director’s duty of loyalty to the company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the GCL, relating to prohibited dividends or the unlawful
purchase or redemption of stock, or (iv) for any transaction from which the director derives an
improper personal benefit.
The Certificate and Bylaws (a) eliminate the personal liability of our directors and (b)
provide for the indemnification of our directors and officers to the fullest extent permitted by
the GCL.
We have entered into indemnification agreements with our directors and executive officers, in
addition to indemnification provided for in the Certificate and Bylaws, and intend to enter into
indemnification agreements with any new directors and executive officers in the future.
In addition, we have purchased insurance pursuant to which our directors and officers are
insured against liability which they may incur in their capacity as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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4.1
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Restated Certificate of Incorporation (1) |
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4.2
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Amended and Restated Bylaws (2) |
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4.3
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Newpark Resources, Inc. 2006 Equity Incentive Plan (3) |
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4.4
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Form of Non-Qualified Stock Option Agreement under the 2006 Equity Incentive
Plan * |
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Newpark Resources, Inc. 1999 Employee Stock Purchase Plan (as amended) (4) |
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5.1
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Opinion of Ervin, Cohen & Jessup, LLP * |
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10.1
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Employment Agreement, dated as of March 22, 2006, between the registrant and
Paul L. Howes (5)† |
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10.2
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Amendment of Employment Agreement, dated June 7, 2006, between the registrant
and Paul L. Howes (6)† |
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10.3
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Stock Award Agreement, dated as of March 22, 2006, by and between the
registrant and Paul L. Howes (7)† |
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10.4
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Non-Statutory Stock Option Agreement, dated as of March 22, 2006, by and
between the registrant and Paul L. Howes (7)† |
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10.5
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Employment Agreement, dated as of September 18, 2006, by and between the
registrant and James E. Braun (8)† |
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10.6
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Employment Agreement, dated as of September 18, 2006, by and between the
registrant and Mark J. Airola (8)† |
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10.7
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Non-Statutory Stock Option Agreement, dated as of May 18, 2006, by and between
the registrant and Sean Mikaelian *† |
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23.1
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Consent of Independent Registered Public Accounting Firm * |
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23.2
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Consent of Ervin, Cohen & Jessup, LLP (included in Exhibit 5.1) * |
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24.1
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Powers of Attorney (included in signature page) * |
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Filed herewith. |
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Management contract, compensation plan or arrangement. |
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Previously filed as an exhibit to the registrant’s Annual Report on Form 10-K
for the year ended December 31, 1998. |
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Previously filed in the exhibits to the registrant’s
Current Report on Form 8-K dated March 7, 2007, which was filed on March 13, 2007. |
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Previously filed as an exhibit to the registrant’s Annual Report on Form 10-K
for the year ended December 31, 2006. |
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Previously filed as an appendix to the registrant’s Proxy Statement dated
November 29, 2006. |
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Previously filed in the exhibits to the registrant’s Current Report on Form 8-K
dated March 22, 2006, which was filed on March 22, 2006. |
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Previously filed in the exhibits to the registrant’s Current Report on Form 8-K
dated June 7, 2006, which was filed on June 13, 2006. |
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Previously filed in the exhibits to the registrant’s Quarterly Report on Form
10-Q for the period ended March 31, 2006. |
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Previously filed in the exhibits to the registrant’s Current Report on Form 8-K
dated September 18, 2006, which was filed on September 20, 2006. |
ITEM 9. Undertakings.
A. The 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;
(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 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 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 registration
statement is on Form S-8 and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of 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.
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 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 of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing indemnification provisions summarized in Item 6, 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 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, as amended, 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 The
Woodlands, State of Texas, on March 23, 2007.
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NEWPARK RESOURCES, INC.
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By |
/s/ Paul L. Howes |
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Paul L. Howes, |
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Chief Executive Officer and President |
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KNOWN BY ALL PERSONS THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Paul L. Howes and Mark J. Airola, or any one of them, their
attorneys-in-fact and agents with full power of substitution and re-substitution, for him and his
name, place and stead, in any and all capacities, to sign any or all amendments to this
Registration Statement on Form S-8 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 foregoing, 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 substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on the dates indicated.
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Title |
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Date |
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/s/
Paul L. Howes
Paul L. Howes
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Chief
Executive Officer,
President and Director
(Principal Executive Officer)
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March 23, 2007 |
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/s/
James E. Braun
James E. Braun
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Vice
President and Chief
Financial Officer
(Principal Financial Officer)
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March 23, 2007 |
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/s/
Eric M. Wingerter
Eric M. Wingerter
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Vice
President of Finance and
Controller
(Principal Accounting Officer)
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March 23, 2007 |
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/s/
David C. Anderson
David C. Anderson
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Director
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March 26, 2007 |