As filed with the Securities and Exchange Commission on June 3, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KAISER ALUMINUM CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 94-3030279 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
27422 Portola Parkway, Suite 200, Foothill Ranch, California 92610-2831
(Address of Principal Executive Offices Including Zip Code)
Kaiser Aluminum Corporation 2021 Equity and Incentive Compensation Plan
(Full Title of the Plan)
John M. Donnan
Executive Vice President, Chief Administrative Officer and General Counsel
Kaiser Aluminum Corporation
27422 Portola Parkway, Suite 200
Foothill Ranch, California 92610-2831
(949) 614-1740
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☒ | 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
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Title of Securities to be Registered |
Amount to be Registered (1)(2) |
Proposed Maximum Offering Price Per Share (3) |
Proposed
Maximum
Offering Price (3) |
Amount of
Registration Fee |
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Common Stock, par value $0.01 per share |
740,120 | $129.555 | $95,886,246.60 | $10,462 | ||||
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(1) |
Represents the number of shares of common stock, par value $0.01 per share (Common Stock), of Kaiser Aluminum Corporation (the Registrant), available pursuant to the Kaiser Aluminum Corporation 2021 Equity and Incentive Compensation Plan (the Plan) being registered hereon. |
(2) |
Pursuant to Rule 416 of the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also covers such additional shares of Common Stock as may become available pursuant to any anti-dilution provisions of the Plan. |
(3) |
Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, based upon the average of the high and low sale prices of the Common Stock on the Nasdaq Global Select Market on May 28, 2021, a date that is within five business days prior to filing. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the employee benefit plan information and other information required by Part I of Form S-8 will be sent or given to participants under the Plan as specified by Rule 428 under the Securities Act. In accordance with Rule 428 under the Securities Act and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the Commission) either as a part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. The Registrant will maintain a file of such documents in accordance with the provisions of Rule 428 under the Securities Act. Upon request, the Registrant will furnish to the Commission or its staff a copy or copies of all of the documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
The Registrant is subject to the informational and reporting requirements of Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and, in accordance therewith, files reports, proxy statements and other information with the Commission. The following documents have been filed by the Registrant with the Commission and are incorporated herein by reference:
(a) |
The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (Commission File No. 001-09447), filed on February 26, 2021; |
(b) |
The Registrants Quarterly Report on Form 10-Q for the quarter ended March 31, 2021 (Commission File No. 001-09447), filed on May 6, 2021; |
(c) |
The Registrants Current Reports on Form 8-K (Commission File No. 001-09447), filed on each of the following dates: January 14, 2021; March 11, 2021; April 1, 2021 (as amended on May 7, 2021) (except with respect to Item 7.01 and Exhibit 99.1, filed as an exhibit to the original Current Report on 8-K); April 13, 2021; May 11, 2021 (except with respect to Item 7.01 and Exhibit 99.1); May 12, 2021; and May 20, 2021; and |
(d) |
The description of the Common Stock contained in Exhibit 4.3 to the Registrants Annual Report on 10-K for the year ended December 31, 2019 (Commission File No. 001-09447), filed on February 25, 2020, and as amended by any subsequent amendment or report filed for the purpose of updating such description. |
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, and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as 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. |
Not applicable.
Item 6. |
Indemnification of Directors and Officers. |
The certificate of incorporation of the Registrant limits the liability of the Registrants directors to the fullest extent permitted by the Delaware General Corporation Law (the DGCL). The DCGL provides that a corporation may limit the personal liability of its directors for monetary damages for breach of that individuals fiduciary duties as a director except for liability for any of the following: (a) a breach of the directors duty of loyalty to the corporation or its
stockholders; (b) any act or omission not in good faith or that involves intentional misconduct or a knowing violation of the law; (c) certain unlawful payments of dividends or unlawful stock repurchases or redemptions; or (d) any transaction from which the director derived an improper personal benefit. This limitation of liability does not apply to liabilities arising under federal securities laws and does not affect the availability of equitable remedies such as injunctive relief or rescission.
Section 145 of the DGCL generally provides that a corporation may indemnify directors and officers, as well as other employees and individuals, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed action, suit or proceeding in which such person was or is a party or is threatened to be made a party by reason of such person being or having been a director, officer, employee or agent of the corporation. The DCGL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
The Registrants certificate of incorporation provides that the Registrant is required to indemnify its directors and officers to the fullest extent permitted or required by the DGCL, although, except with respect to certain actions, suits or proceedings to enforce rights to indemnification, a director or officer will only be indemnified with respect to any action, suit or proceeding such person initiated to the extent such action, suit or proceeding was authorized by the Registrants board of directors. The Registrants certificate of incorporation also requires the Registrant to advance expenses incurred by a director or officer in connection with the defense of any action, suit or proceeding arising out of that persons status or service as director or officer of the Registrant or as director, officer, employee or agent of another enterprise, if serving at the Registrants request. In addition, the Registrants certificate of incorporation permits the Registrant to secure insurance to protect itself and any director, officer, employee or agent of the Registrant or any other corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss.
In addition, the Registrant has entered into indemnification agreements with each of its directors and executive officers containing provisions that obligate the Registrant to, among other things:
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indemnify, defend and hold harmless the director or officer to the fullest extent permitted or required by Delaware law, except that, subject to certain exceptions, the director or officer will be indemnified with respect to a claim initiated by such director or officer against the Registrant or any other director or officer of the Registrant only if the Registrant has joined in or consented to the initiation of such claim; |
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advance prior to the final disposition of any indemnifiable claim any and all expenses relating to, arising out of or resulting from any indemnifiable claim paid or incurred by the director or officer or which the director or officer determines is reasonably likely to be paid or incurred by him or her; and |
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utilize commercially reasonable efforts to cause to be maintained in effect policies of directors and officers liability insurance providing coverage that is at least substantially comparable in scope and amount to that provided by the Registrants policies of directors and officers liability insurance at the time the parties enter into such indemnification agreement. |
The indemnification provisions in the Registrants certificate of incorporation and the indemnification agreements entered into with the Registrants directors and officers may be sufficiently broad to permit indemnification of such directors and officers for liabilities arising under the Securities Act. The Registrant is covered by liability insurance policies which indemnify its and its subsidiaries directors and officers against loss arising from claims by reason of their legal liability for acts as such directors, officers, or trustees, subject to limitations and conditions as set forth in the policies.
The foregoing discussion of the Registrants certificate of incorporation and Delaware law is not intended to be exhaustive and is qualified in its entirety by such certificate of incorporation or law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. |
Exhibits. |
Exhibit Number Description
4.1 |
4.2 |
4.3 |
4.4 |
4.5 |
4.6 |
4.8 |
5.1* |
23.1* |
Consent of Independent Registered Public Accounting Firm (Deloitte & Touche LLP) |
23.2* |
Consent of Independent Registered Public Accounting Firm (PricewaterhouseCoopers LLP) |
23.3* |
24.1* |
*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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 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 Exchange Act that are incorporated by reference 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.
(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 Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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 Foothill Ranch, State of California, on this 3rd day of June, 2021.
KAISER ALUMINUM CORPORATION | ||
By: |
/s/ Cherrie I. Tsai |
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Name: | Cherrie I. Tsai | |
Title: | Vice President, Deputy General Counsel & Corporate Secretary |
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned officers and directors of the Registrant hereby constitutes and appoints Keith A. Harvey, Neal West, John M. Donnan and Cherrie I. Tsai, or any of them, each acting alone, as the true and lawful attorney-in-fact or agent, or attorneys-in-fact or agents, for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute and file any and all amendments, including post-effective amendments, supplements and exhibits to this Registration Statement, 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 necessary, appropriate or desirable to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he or she might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, 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 date indicated.
Signature |
Title |
Date |
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/s/ Keith A. Harvey Keith A. Harvey |
President and Chief Executive Officer (Principal Executive Officer) |
June 3, 2021 | ||||||
/s/ Neal West Neal West |
Executive Vice President
and Chief Financial
Officer
|
June 3, 2021 | ||||||
/s/ Jennifer S. Huey Jennifer S. Huey |
Vice President and Chief Accounting Officer (Principal Accounting Officer) |
June 3, 2021 | ||||||
/s/ Jack A. Hockema Jack A. Hockema |
Director | June 3, 2021 | ||||||
/s/ David Foster David Foster |
Director | June 3, 2021 | ||||||
Leo W. Gerard |
Director | |||||||
/s/ Emily Liggett Emily Liggett |
Director | June 3, 2021 | ||||||
/s/ Lauralee E. Martin Lauralee E. Martin |
Director | June 3, 2021 | ||||||
Alfred E. Osborne, Jr., Ph.D. |
Director | |||||||
/s/ Teresa M. Sebastian Teresa M. Sebastian |
Director | June 3, 2021 | ||||||
/s/ Donald J. Stebbins Donald J. Stebbins |
Director | June 3, 2021 | ||||||
/s/ Thomas M. Van Leeuwen Thomas M. Van Leeuwen |
Director | June 3, 2021 | ||||||
/s/ Brett E. Wilcox Brett E. Wilcox |
Director | June 3, 2021 |
EXHIBIT 5.1
June 3, 2021
Kaiser Aluminum Corporation
27422 Portola Parkway, Suite 200
Foothill Ranch, California 92610-2831
Re: |
Registration Statement on Form S-8 Filed by Kaiser Aluminum Corporation |
Ladies and Gentlemen:
I am the Executive Vice President, Chief Administrative Officer and General Counsel of Kaiser Aluminum Corporation, a Delaware corporation (the Company) and have acted as counsel for the Company in connection with the Kaiser Aluminum Corporation 2021 Equity and Incentive Compensation Plan (the Plan). In my capacity as counsel for the Company, I have (or a member of my staff has) examined such documents, records and matters of law as I have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, I am of the opinion that the 740,120 shares (the Shares) of common stock, par value $0.01 per share, of the Company that may be issued or delivered and sold pursuant to the Plan and the authorized award agreements thereunder (the Award Agreements) will be, when issued or delivered and sold in accordance with the Plan and the Award Agreements, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least equal to the stated par value thereof.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware, as currently in effect, and I express no opinion as to the effect of the laws of any other jurisdiction on the opinion expressed herein. In addition, I have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered or sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, I have assumed that each award under the Plan will be approved by the Board of Directors of the Company or an authorized committee of the Board of Directors.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect the registration of the Shares under the Securities Act of 1933 (the Act). In giving such consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely, |
/s/ John M. Donnan |
Name: John M. Donnan |
Title: Executive Vice President, Chief Administrative Officer and General Counsel |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 25, 2021, relating to the financial statements of Kaiser Aluminum Corporation (the Company), and the effectiveness of the Companys internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2020.
/s/ Deloitte & Touche LLP
Costa Mesa, California
June 3, 2021
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of Kaiser Aluminum Corporation of our report dated March 18, 2021 relating to the combined financial statements of the Alcoa Warrick Rolling Mill, included in the Current Report on Form 8-K/A of Kaiser Aluminum Corporation dated May 7, 2021.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
June 3, 2021