As filed with the United States Securities and Exchange Commission on March 9, 2020
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Quanex Building Products Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 26-1561397 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |
| 1800 West Loop South, Suite 1500 Houston, Texas | 77027 | |
| (Address of principal executive offices) | (Zip code) |
Quanex Building Products Corporation 2020 Omnibus Incentive Plan
(Full title of plan)
|
George L. Wilson President and Chief Executive Officer Quanex Building Products Corporation 1800 West Loop South, Suite 1500 Houston, Texas 77027 (713) 961-4600 (Name, address and telephone number of agent for service)
Copies to:
Evan Stone Foley & Lardner LLP 2021 McKinney Ave, Suite 1600 Dallas, TX 75201 Telephone: (214) 999-4906 |
| Large accelerated filer x | Accelerated filer ¨ | Non-accelerated filer ¨ | Smaller reporting company ¨ |
Emerging growth company ¨ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
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 Stock, $0.01 par value | 3,094,587.00 shares | $17.39 | $53,814,867.93 | $6,985.17 | ||||||||
| (1) | The shares of common stock, $0.01 par value per share (“Common Stock”), of Quanex Building Products Corporation registered hereby consist of (a) 3,035,053 shares reserved for issuance pursuant to the Quanex Building Products Corporation 2020 Omnibus Incentive Plan (the “2020 Plan”) and (b) 59,534 shares that were subject to awards under the Quanex Building Products Corporation 2008 Omnibus Incentive Plan (the “2008 Plan”) and have become available for grant under the 2020 Plan as a result of forfeitures. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares of Common Stock that may become issuable in accordance with the adjustment and anti-dilution provisions of the 2020 Plan. |
| (2) | Determined in accordance with Rules 457(c) and 457(h) under the Securities Act, the proposed maximum aggregate offering price per share and the proposed offering price were calculated using the average of the high and low prices of a share of Quanex Building Products Corporation Common Stock as reported on the New York Stock Exchange on March 4, 2020. |
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required to be specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement (by incorporation by reference or otherwise) 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. Documents containing the information required by Part I of the Registration Statement will be sent or given to participants of as specified by Rule 428(b)(1) of the Securities Act.
PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference |
Quanex Building Products Corporation (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “SEC”):
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended October 31, 2019, filed with the SEC on December 12, 2019; |
| (b) | The Registrant’s quarterly report on Form 10-Q for the three months ended January 31, 2020, filed with the SEC on March 6, 2020. |
| (c) | The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the SEC on January 29, 2020, and any amendments thereto; |
| (d) | The Registrant’s current report on Form 8-K filed with the SEC on March 2, 2020; |
| (e) | All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act, since the end of the fiscal year covered by the Annual Report (other than the portions of these documents not deemed to be filed); and |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein 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 of this Registration Statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
None.
| Item 6. | Indemnification of Directors and Officers |
Section 145 of the Delaware General Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with an action or proceeding to which he is, or is threatened to be made, a party by reason of such position, if such person shall have 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 proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
The Registrant’s Restated Certificate of Incorporation (the “Restated Certificate”) states that the corporation shall indemnify any director or officer to the full extent permitted by Delaware law. Article XVII of the Registrant’s Restated Certificate provides that a director of the Registrant shall not be personally liable to the Registrant 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 Registrant or its stockholders, (ii) for any acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) based on the payment of an unlawful dividend or an unlawful stock purchase or redemption of the Registrant’s stock under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize further elimination or limitation of the liability of directors, then the Restated Certificate states that the liability of a director of the Registrant, in addition to the limitation on personal liability provided in the Restated Certificate, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law. Further, the Restated Certificate provides that any repeal or modification of Article XVII by the stockholders shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director existing at the time of such repeal or modification.
Article XI of the Fourth Amended and Restated Bylaws (the “Bylaws”) of the Registrant provides that, under certain circumstances, the Registrant is required to indemnify any person who was, is, or is threatened to be made a party in any action, suit or proceeding because such person is or was a director or officer of the Registrant, to the fullest extent authorized by Delaware law. The Bylaws also require the Registrant to provide for the payment of expenses in advance of the final disposition of any suit or proceeding brought against the director or officer of the Registrant in his official capacity as such, provided that, if Delaware law requires, such director or officer delivers to the Registrant an undertaking to repay any amounts advanced if it is ultimately determined that such director or officer is not entitled to indemnification. The Bylaws also provide that any repeal or modification of Article XI shall not adversely affect any right or protection thereunder arising out of, or related to, any act or omission occurring prior to the time of such repeal or modification. The indemnification and advancement of expenses under Section 11.1 of the Bylaws are not exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any agreement, vote of stockholders, vote of disinterested directors, insurance arrangement or otherwise, both as to action in his or her official capacity and as to action in another capacity.
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The Registrant has entered into separate indemnification agreements with each of its non-employee directors and executive officers that provide the maximum indemnity allowed to non-employee directors and officers under applicable law and also to provide for certain additional procedural provisions, as further described in the indemnification agreements. The Registrant also maintains a directors’ and officers’ insurance policy.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
| Item 8. | Exhibits |
| Exhibit |
Exhibit Description | Incorporated by Reference | ||||||
| Form | Exhibit | Filing Date | ||||||
| 4.1 | Restated Certificate of Incorporation of the Registrant dated as of March 4, 2016 | 8-K | 3.1 | March 7, 2016 | ||||
| 4.2 | Fourth Amended and Restated Bylaws of the Registrant as of February 27, 2020 | 10-Q | 3.2 | March 6, 2020 | ||||
| 4.3 | Form of common stock certificate of Registrant | 10 | 4.1 | February 14, 2008 | ||||
| 5.1 * | Opinion of Senior Vice President- General Counsel and Secretary | |||||||
| 23.1* | Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm | |||||||
| 24.1* | Power of Attorney (included on the signature page hereto) | |||||||
| 99.1 | Quanex Building Products Corporation 2020 Omnibus Incentive Plan effective February 27, 2020 | 8-K | 10.2 | March 6, 2020 | ||||
*Filed herewith
| 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 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 SEC 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
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(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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement; and
(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 herein, 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 to any purchaser, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this 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 SEC 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.
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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 Houston, State of Texas, on March 9, 2020.
| QUANEX BUILDING PRODUCTS CORPORATION | ||
| By: | /s/ George L. Wilson | |
| George L. Wilson | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints George L. Wilson, Scott M. Zuehkle, and Mark Livingston, and each of them, as his or her true and lawful attorney-in-fact and agent, 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, to sign any and all amendments to this registration statement (including post-effective amendments), 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 connection therewith, as fully for 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, his or her substitutes, may lawfully do or cause to be done by virtue hereof.
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 date indicated.
| Signature | Title | DATE |
| /s/ George L. Wilson | President, Chief Executive Officer and Director | March 9, 2020 |
| George L. Wilson | ||
| /s/ Scott M. Zuehlke |
Senior Vice President—Chief Financial Officer and Treasurer |
March 9, 2020 |
| Scott M. Zuehkle | (Principal Financial Officer) | |
| /s/ Mark A. Livingston |
Vice President—Chief Accounting Officer and Controller |
March 9, 2020 |
| Mark A. Livingston | (Principal Accounting Officer) | |
| /s/ William C. Griffiths | Chairman of the Board | March 9, 2020 |
| William C. Griffiths | ||
| /s/ Susan F. Davis | Director | March 9, 2020 |
| Susan F. Davis | ||
| /s/ Donald R. Maier | Director | March 9, 2020 |
| Donald R. Maier | ||
| /s/ Joseph D. Rupp | Director | March 9, 2020 |
| Joseph D. Rupp | ||
| /s/ Curtis M. Stevens | Director | March 9, 2020 |
| Curtis M. Stevens | ||
| /s/ Robert R. Buck | Director | March 9, 2020 |
| Robert R. Buck | ||
| /s/ Meredith W. Mendes | Director | March 9, 2020 |
| Meredith W. Mendes |
[Signature Page to S-8 Registration Statement]
Exhibit 5.1
1800 West Loop South
Suite 1500
Houston, Texas 77027
Main: 713-961-4600
March 9, 2020
Quanex Building Products Corporation
1800 West Loop South, Suite 1500
Houston, Texas 77027
Ladies and Gentlemen:
I am the Senior Vice President-General Counsel and Secretary of Quanex Building Products Corporation, a Delaware corporation (the “Company”). As such, I have advised the Company in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of 3,094,5872 shares (the “Shares”) of the Company’s common stock, $0.01 par value, to be offered upon the terms and subject to the conditions set forth in the Quanex Building Products Corporation 2020 Omnibus Incentive Plan (the “Plan”).
In connection therewith, I have examined originals or copies, certified or otherwise identified to my satisfaction, of the Certificate of Incorporation of the Company, as amended, the By-laws of the Company, as amended, the Plan, records of relevant corporate proceedings with respect to the offering of the Shares and such other documents, instruments and corporate records as I have deemed necessary or appropriate for the expression of the opinions contained herein. I also have examined the Company’s Registration Statement on Form S-8 (the “Registration Statement”), to be filed with the Securities and Exchange Commission with respect to the Shares.
I have assumed the authenticity and completeness of all records, certificates and other instruments submitted to me as originals, the conformity to original documents of all records, certificates and other instruments submitted to me as copies, the authenticity and completeness of the originals of those records, certificates and other instruments submitted to me as copies and the correctness of all statements of fact contained in all records, certificates and other instruments that I have examined.
Based on the foregoing, and having regard for such legal considerations as I have deemed relevant, I am of the opinion that the Shares have been duly and validly authorized for issuance and, when issued in accordance with the terms of the Plan, will be duly and validly issued, fully paid and nonassessable.
The opinions expressed herein relate solely to, are based solely upon and are limited exclusively to the General Corporation Law of the State of Delaware and the federal laws of the United States of America, to the extent applicable.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
| Very truly yours, | |
| /s/ Paul B. Cornett | |
| Paul B. Cornett |
www.quanex.com
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our reports dated December 12, 2019, with respect to the consolidated financial statements and internal control over financial reporting of Quanex Building Products Corporation included in the Annual Report on Form 10-K for the year ended October 31, 2019, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement.
| /s/ GRANT THORNTON LLP | |
| Houston, Texas | |
| March 9, 2020 |