S-8 1 ds8.htm FORM S-8 Form S-8

As filed with the Securities and Exchange Commission on February 17, 2004

Registration No. 333-            

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

LUFKIN INDUSTRIES, INC.

(Exact name of Registrant as specified in its charter)

 

Texas   75-0404410
(State or other jurisdiction   (I.R.S. Employer
of incorporation or organization)   Identification No.)

 

601 South Raguet

Lufkin, Texas 75902

(Address of Principal Executive Offices)

 

LUFKIN INDUSTRIES, INC.

INCENTIVE STOCK COMPENSATION PLAN 2000

(Full Title of the Plan)

 

 

Douglas V. Smith

President and Chief Executive Officer

601 South Raguet

Lufkin, Texas 75902

(409) 634-2211

(Name and address of agent for service)

 

 

Copy to:

 

G. Michael O’Leary

Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002

(713) 220-4360

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered    Amount
to be
registered(1)		    Proposed
maximum
offering price
per share(2)		    Proposed
maximum
aggregate
offering price(2)		    Amount of
registration fee

Common Price, par value $1 per share(3)

    900,000 shares    $30.23    $27,207,000    $3448

 

(1) This Registration Statement also covers additional shares of common stock which become issuable under the Incentive Stock Compensation Plan 2000 with respect to the securities registered hereunder by reason of a merger, consolidation, recapitalization, reclassification, stock split, stock dividend, combination of shares, or the like.

 

(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended, and are based upon the average of the high and low prices per share of the Registrant’s common stock on the NASDAQ National Market System on February 12, 2004.

 

(3) Each share of Common Stock offered hereby includes one common share purchase right which is exercisable upon the occurrence of certain specified events.

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Information required by Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act of 1933, as amended (the “Securities Act”), is not required to be filed with the United States Securities and Exchange Commission (the “Commission”) and is omitted from this Registration Statement in accordance with the explanatory note to Part I of Form S-8 and Rule 428 under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Commission allows us to “incorporate by reference” information into this Registration Statement, which means that we can disclose important information to you by referring you to another document filed separately with the Commission. The information incorporated by reference is deemed to be part of this Registration Statement, except for any information superseded by information in this Registration Statement.

 

The following documents filed by us with the Commission are incorporated herein by reference:

 

  (a) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2002 filed with the Commission on March 26, 2003;

 

  (b) Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2003 filed with the Commission on May 7, 2003;

 

  (c) Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2003 filed with the Commission on August 13, 2003;

 

  (d) Our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2003 filed with the Commission on November 12, 2003;

 

  (e) Our Current Reports on Form 8-K filed with the Commission on August 14, 2003, November 24, 2003, and January 12, 2004;

 

  (f) The description of our Common Stock contained in our Registration Statement on Form 8-A/A, filed with the Commission on February 17, 2004, including any subsequent amendments or reports filed for the purpose of updating such description; and

 

  (g) All other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, 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.

 

Any statement contained in a document incorporated or deemed 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 subsequently filed document which also is incorporated or 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 modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

The class of securities to be offered is registered under Section 12 of the Exchange Act.

 

Item 5. Interests of Named Experts and Counsel.

 

The validity of the issuance of the shares of Common Stock offered hereby will be passed upon for the Company by Andrews Kurth LLP, 600 Travis Street, Suite 4200, Houston, Texas 77002.

 

The financial statements incorporated in this registration statement by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2002 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and has been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.

 

Arthur Andersen LLP, independent public accountants, audited our financial statements as of December 31, 2001 and for the years ended December 31, 2001 and 2000 incorporated by reference herein. In June 2002, Arthur Andersen was convicted on a federal obstruction of justice charge and has ceased operations. Arthur Andersen has not, therefore, consented to the inclusion of its report in this registration statement, and we have dispensed with the requirement to file their consent in reliance upon Rule 437a of the Securities Act of 1933. As a result, you may not be able to recover from Arthur Andersen for claims that you may assert related to the financial statements audited by Arthur Andersen, including under Section 11 of the Securities Act for material misstatements or omissions, if any, in the registration statement.

 

Item 6. Indemnification of Directors and Officers.

 

The Company’s Bylaws contain provisions permitted by the Texas Business Corporations Act (under which the Company is organized) which, in general terms, provide that directors and officers will be indemnified by the Company, to the full extent authorized or permitted by law, for all losses that may be incurred by them in connection with any claim or legal action in which they may become involved by reason of their service as a director or officer of the Company.

 

Article 2.02-1 of the Texas Business Corporations Act provides that a company may indemnify an officer or director who was, is or is threatened to be made a party to any suit or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, because the person is or was a director, officer, employee, or agent of the company, or is or was serving at the request of the company in the same or another capacity in another corporation or business association, against judgments, penalties, fines, settlements and reasonable expenses actually incurred if it is determined that the person: (i) conducted himself in good faith, (ii) reasonably believed (a) in the case of conduct in his official capacity, that his conduct was in the best interests of the company, or (b) in all other cases, that his conduct was at least not opposed to the company’s best interest, and (iii) in the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful; provided that, if the person is found liable to the company or is found liable on the basis that personal benefit was improperly received by the person, the indemnification (i) is limited to reasonable expenses actually incurred by the person in connection with the proceeding and (ii) will not be made in respect of any proceeding in which the person shall have been found liable for willful or intentional misconduct in the performance of his duty to the company.

 

The directors and officers of the Company are insured (subject to certain exception and deductions) against liabilities which they may incur in their capacity as such under a liability insurance policy carried by the Company.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable to this Registration Statement.

 

Item 8. Exhibits.

 

The following exhibits have been filed as part of this Registration Statement and are specifically incorporated by reference:

 

  4.1    Fourth Restated Articles of Incorporation of the Company.
  4.2    Articles of Amendment to the Fourth Restated Articles of Incorporation (included as exhibit 3.1 to the Form 8-K filed by the Company on December 10, 1999, and incorporated herein by reference).
  4.3    Restated Bylaws of the Company (included as Exhibit 3.2 to the Form 8-K filed by the Company on December 10, 1999, and incorporated herein by reference).
  4.4    The Company’s Incentive Stock Compensation Plan 2000.
  5.1    Opinion of Andrews Kurth LLP regarding legality of common stock.
23.1    Consent of Andrews Kurth LLP (included in Exhibit 5.1).
23.2    Consent of Deloitte & Touche LLP.
24.1    Power of Attorney relating to subsequent amendments (included on the signature page to 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:

 

(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 this 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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(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 paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if 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 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 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 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, 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 Lufkin, State of Texas, on this 12th day of February, 2004.

 

LUFKIN INDUSTRIES, INC.

By:   /s/    D.V. SMITH        
   

Name:

   D. V. Smith

Title:

   President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints D.V. Smith and R.D. Leslie as his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, 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 other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them, or of their substitute or 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 by the following persons in the capacities and on the dates stated.

 

Name and Signature

   

Title

  

Date

/s/    D.V. SMITH        

D. V. Smith

    President and Chief Executive Officer   February 12, 2004

/s/    R. D. LESLIE        

R. D. Leslie

    Vice President, Treasurer, Chief Financial Officer, Principal Financial and Accounting Officer   February 12, 2004

/s/    J. F. ANDERSON        

J. F. Anderson

    Director   February 13, 2004

/s/    S. W. HENDERSON, III        

S. W. Henderson, III

    Director   February 12, 2004

/s/    J. T. JONGELOED        

J. T. Jongebloed

    Director   February 12, 2004

/s/    J. H. LOLLAR        

J. H. Lollar

    Director   February 12, 2004

/s/    B. H. O’NEAL        

B. H. O’Neal

    Director   February 12, 2004

/s/    H. J. TROUT, JR.        

H. J. Trout, Jr.

    Director   February 12, 2004

/s/    T. E. WEINER        

T. E. Weiner

    Director   February 12, 2004

 

EXHIBIT INDEX

 

Exhibit No.
   

Description

  4.1    Fourth Restated Articles of Incorporation of the Company.
  4.2    Articles of Amendment to the Fourth Restated Articles of Incorporation (included as exhibit 3.1 to the Form 8-K filed by the Company on December 10, 1999, and incorporated herein by reference).
  4.3    Restated Bylaws of the Company (included as Exhibit 3.2 to the Form 8-K filed by the Company on December 10, 1999, and incorporated herein by reference).
  4.4    The Company’s Incentive Stock Compensation Plan 2000.
  5.1    Opinion of Andrews Kurth LLP regarding legality of common stock
23.1    Consent of Andrews Kurth LLP (included in Exhibit 5.1)
23.2    Consent of Deloitte & Touche LLP.
24.1    Power of Attorney relating to subsequent amendments (included on the signature page to this Registration Statement)