Attached files
| file | filename |
|---|---|
| EX-31.2 - CERTIFICATION OF CFO - MAXXAM INC | exh31_2.htm |
| EX-31.1 - CERTIFICATION OF CEO - MAXXAM INC | exh31_1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 2)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
For the fiscal year ended December 31, 2008 |
Commission File Number 1-3924 |
MAXXAM INC.
|
Delaware
(State or other jurisdiction
of incorporation or organization) |
95-2078752
(I.R.S. Employer
Identification Number) | |
|
1330 Post Oak Blvd., Suite 2000
Houston, Texas
(Address of Principal Executive Offices) |
77056
(Zip Code) |
Registrant’s telephone number, including area code: (713) 975-7600
Securities registered pursuant to Section 12(b) of the Act:
|
Title of each class |
Name of each exchange
on which registered |
||||
|
Common Stock, $.50 par value |
American |
Securities registered pursuant to Section 12(g) of the Act: None.
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant as required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days.
Yes x No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non- accelerated filer or a smaller reporting company. (Check one):
|
Large accelerated filer o |
Accelerated filer o |
Non-accelerated filer o |
Smaller reporting company x |
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x
The aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, as of the last business day of the Registrant’s most recently completed second fiscal quarter: $43.1 million.
Number of shares of common stock outstanding at March 20, 2009: 4,559,637
DOCUMENTS INCORPORATED BY REFERENCE:
Certain portions of Registrant’s definitive proxy statement, to be filed with the Securities and Exchange Commission pursuant to Regulation 14A not later than 120 days after the close of the Registrant’s fiscal year, are incorporated by reference under Part III.
EXPLANATORY NOTE
The Registrant previously filed a Form 10-K/A (Amendment No. 1) to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008 in order to correct an error on the signature page of the original filing. This Form 10-K/A (Amendment No. 2) is being
submitted in order to amend the Form 10-K/A (Amendment No. 1) to include the certifications of the Registrant’s Chief Executive Officer and Chief Financial Officer required by Section 302 of the Sarbanes-Oxley Act of 2002.
ITEM 15. EXHIBITS
Reference is made to the Index of Exhibits at the end of this Report, which index is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
MAXXAM INC.
|
Date: October 15, 2009 |
By: |
/s/ M. EMILY MADISON |
|
M. Emily Madison
Vice President, Finance |
INDEX OF EXHIBITS
|
Exhibit
Number |
Description | |
|
3.1 |
Restated Certificate of Incorporation of the Company (conformed to include all amendments and certificates of designation thereto and incorporated herein by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004)
| |
|
*3.2 |
Certificate of Powers, Designations, Preferences and Relative, Participating, Optional and Other Rights of the Company’s Class B Junior Participating Preferred Stock
| |
|
*3.3 |
Certificate of Designations of the Company’s Class A $.05 Non-Cumulative Participating Convertible Preferred Stock
| |
|
*3.4 |
Amended and Restated By-laws of the Company, dated March 30, 2000
| |
|
*4.1 |
Rights Agreement, dated December 15, 1999, by and between the Company and American Stock Transfer & Trust Company
| |
|
Note: Included within Exhibits 10.1 to 10.26 below are the principal long-term debt instruments of the Company and its consolidated subsidiaries. Pursuant to Regulation § 229.601, Item 601(b)(4)(iii) of Regulation S-K, upon request of the Securities and Exchange Commission, the Company hereby agrees to furnish a copy of
any unfiled instrument which defines the rights of holders of long-term debt of the Company and its consolidated subsidiaries (and for any of its unconsolidated subsidiaries for which financial statements are required to be filed) wherein the total amount of securities authorized thereunder does not exceed 10% of the total consolidated assets of the Company
| ||
|
*10.1 |
Loan Agreement, dated June 28, 2001, between Lakepointe Assets LLC and Legg Mason Real Estate Services, Inc.
| |
|
*10.2 |
Promissory Note, dated June 28, 2001, between Lakepointe Assets LLC and Legg Mason Real Estate Services, Inc.
| |
|
*10.3 |
Lease Agreement, dated June 28, 2001, between Lakepointe Assets LLC and Fluor Enterprises Inc.
| |
|
*10.4 |
Guarantee of Lease, dated June 28, 2001, between Fluor Corporation and Lakepointe Assets LLC
| |
|
10.5 |
Loan Agreement, dated April 30, 1998, between Nomura Asset Capital Corporation and M-Six Penvest II Business Trust (incorporated herein by reference to Exhibit 10.5 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007; the “Company’s 2007 Form
10-K”)
| |
|
10.6 |
Indenture, Mortgage, Deed of Trust, Security Agreement, Fixture Filing, Financing Statement and Assignment of Rents and Leases, dated April 30, 1998, among Nomura Asset Capital Corporation and various property owners (incorporated herein by reference to Exhibit 10.6 to the Company’s 2007 Form 10-K)
| |
|
10.7 |
Amendment No. 1 to Indenture and Other Operative Documents, dated September 1, 1998, among Nomura Asset Capital Corporation and various property owners (incorporated herein by reference to Exhibit 10.7 to the Company’s 2007 Form 10-K)
| |
|
10.8 |
Amendment No. 2 to Indenture and Other Operative Documents, dated September 1, 1998, among Nomura Asset Capital Corporation and various property owners (incorporated herein by reference to Exhibit 10.8 to the Company’s 2007 Form 10-K)
|
|
Exhibit
Number |
Description | |
|
10.9 |
Class A Promissory Note, dated April 30, 1998, executed by M-Six Penvest II Business Trust, M-Six Penvest II Business Trust (LA), and M-Six Penvest II Business Trust (NEV) in favor of The Capital Company of America LLC and Nomura Asset Capital Corporation (incorporated herein by reference to Exhibit 10.9 to the Company’s 2007 Form
10-K)
| |
|
10.10 |
Class B Promissory Note, dated April 30, 1998, executed by M-Six Penvest II Business Trust, M-Six Penvest II Business Trust (LA), and M-Six Penvest II Business Trust (NEV) in favor of The Capital Company of America LLC and Nomura Asset Capital Corporation (incorporated herein by reference to Exhibit 10.10 to the Company’s 2007 Form
10-K)
| |
|
10.11 |
Lease Agreement, dated April 30, 1998, among Universal Commercial Credit Leasing III, Inc. and M-Six Penvest II Business Trust and various property owners (incorporated herein by reference to Exhibit 10.11 to the Company’s 2007 Form 10-K)
| |
|
10.12 |
Lease Guaranty, dated April 30, 1998, executed by Accor in favor of M-Six Penvest II Business Trust and various property owners (incorporated herein by reference to Exhibit 10.12 to the Company’s 2007 Form 10-K)
| |
|
10.13 |
Purchase Agreement, dated November 12, 2002, between USRA Leveraged Net Lease, LLC and Motel Assets Holdings LLC (incorporated herein by reference to Exhibit 10.13 to the Company’s 2007 Form 10-K)
| |
|
10.14 |
Lender’s Consent to Transfer, dated December 5, 2002, among LaSalle Bank National Association, as Trustee for BH Finance LLC Trust, Credit Lease Loan Pass-Through Certificates, Series 2000-A Pools V-IX; LaSalle Bank National Association, as Trustee for Capco America Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1998-D7; M-Six Penvest II Business Trust; M-Six Penvest II Business Trust (LA); USRA Leveraged Net Lease, LLC; and Motel Assets Holdings LLC (incorporated herein by reference to Exhibit 10.14 to the Company’s 2007 Form 10-K)
| |
|
10.15 to
10.18
|
[Reserved] | |
|
10.19 |
Loan Agreement, dated November 19, 2002, between Beltway Assets LLC and Legg Mason Real Estate Services, Inc. (incorporated herein by reference to Exhibit 10.19 to the Company’s 2007 Form 10-K)
| |
|
10.20 |
Indemnity and Guarantee Agreement, dated November 19, 2007, by and between Beltway Assets Holdings LLC and Legg Mason Real Estate Services, Inc. (incorporated herein by reference to Exhibit 10.20 to the Company’s 2007 Form 10-K)
| |
|
10.21 |
Promissory Note, dated November 18, 2002, executed by Beltway Assets LLC in favor of Legg Mason Real Estate Services, Inc. (incorporated herein by reference to Exhibit 10.21 to the Company’s 2007 Form 10-K)
| |
|
10.22 |
Lease Agreement, dated November 19, 2002, between Beltway Assets LLC and Cooper Cameron Corporation (incorporated herein by reference to Exhibit 10.22 to the Company’s 2007 Form 10-K)
| |
|
10.23 |
Loan Agreement, dated October 26, 2000, between the Puerto Rico Industrial Tourist, Educational, Medical and Environmental Control Facilities Financing Authority and Palmas Country Club, Inc. (incorporated herein by reference to Exhibit 10.28 to the Company’s 2007 Form 10-K)
|
|
Exhibit
Number |
Description | |
|
10.24 |
Letter of Credit and Reimbursement Agreement, dated October 26, 2000, between the Puerto Rico Tourism Development Fund and Palmas Country Club, Inc. (incorporated herein by reference to Exhibit 10.29 to the Company’s 2007 Form 10-K)
| |
|
10.25 |
Letter of Credit, dated October 26, 2000, issued by the Puerto Rico Tourism Development Fund for the benefit of Palmas Country Club, Inc. (incorporated herein by reference to Exhibit 10.30 to the Company’s 2007 Form 10-K)
| |
|
10.26 |
Trust Agreement, dated October 26, 2000, between the Puerto Rico Industrial Tourist, Educational, Medical and Environmental Control Facilities Financing Authority and PaineWebber Trust Company of Puerto Rico (incorporated herein by reference to Exhibit 10.31 to the Company’s 2007 Form 10-K)
| |
|
10.27 to
10.30 |
[Reserved]
| |
|
10.31 |
Stock Purchase Agreement, dated March 11, 2008, among the Company, Luxor Capital Partners, LP and Luxor Capital Partners Offshore, Ltd. (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 17, 2008)
| |
|
10.32 |
Term Sheet Regarding Global Settlement and Plan Support among MRC, Marathon, the Palco Debtors, the Company, MGHI and MGI (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 5, 2008)
| |
|
10.33 |
Agreement, dated July 10, 2008, between The Pension Benefit Guaranty Corporation and the Company (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 16, 2008)
| |
|
10.34 |
Settlement Agreement, dated December 17, 2008, among the Company, certain affiliated persons, and the FDIC (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 18, 2008)
| |
|
*10.35 |
Tax Allocation Agreement (the “MGHI Tax Allocation Agreement”), dated December 23, 1996, between the Company and MGHI
| |
|
*10.36 |
Amendment of MGHI Tax Allocation Agreement, dated December 31, 2001
| |
|
*10.37 |
Tax Allocation Agreement (the “MGI Tax Allocation Agreement”), dated August 4, 1993, between the Company and MGI
| |
|
*10.38 |
Amendment of MGI Tax Allocation Agreement, dated December 31, 2001, between the Company and MGI
| |
|
*10.39 |
Tax Allocation Agreement, dated May 21, 1988, among the Company, MGI, Palco and the companies signatory thereto
| |
|
*10.40 |
Tax Allocation Agreement (the “Palco Tax Allocation Agreement”), dated March 23, 1993, among Palco, Scotia Pacific Holding Company, Salmon Creek Corporation and the Company
| |
|
*10.41 |
Amendment of Palco Tax Allocation Agreement, dated December 31, 2001
| |
|
*10.42 |
Tax Allocation Agreement, dated February 9, 2004, among Britt Lumber Co Inc., Palco, MGI and the Company
| |
|
10.43 to
10.50 |
[Reserved] |
|
Exhibit
Number |
Description | |
|
Executive Officer and Director Compensation Plans and Agreements
| ||
|
*10.51 |
MAXXAM 2002 Omnibus Employee Incentive Plan (the “2002 Omnibus Plan”)
| |
|
10.52 |
Form of Stock Option Agreement under the 2002 Omnibus Plan (incorporated herein by reference to Exhibit 10.64 to the Company Annual Report on Form 10-K for the year ended December 31, 2006)
| |
|
*10.53 |
MAXXAM 1994 Omnibus Employee Incentive Plan (the “1994 Omnibus Plan”)
| |
|
*10.54 |
Form of Stock Option Agreement under the 1994 Omnibus Plan
| |
|
10.55 |
MAXXAM 1994 Executive Bonus Plan (Amended and Restated 2008) (incorporated herein by reference to Appendix A to the Company’s Schedule 14A filed on April 28, 2008; the “Executive Bonus Plan”)
| |
|
10.56 |
2008 Bonus Criteria for the MAXXAM Chief Executive Officer under the Executive Bonus Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 3, 2008)
| |
|
10.57 |
2008 Bonus Criteria for the MAXXAM President under the Executive Bonus Plan (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on April 3, 2008)
| |
|
10.58 |
2008 Bonus Criteria for the MAXXAM General Counsel under the Executive Bonus Plan (incorporated herein by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on April 3, 2008)
| |
|
10.59 |
2007 Bonus Criteria for the MAXXAM Chief Executive Officer under the Executive Bonus Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 5, 2007)
| |
|
10.60 |
2007 Bonus Criteria for the MAXXAM Vice Chairman and General Counsel under the Executive Bonus Plan (incorporated herein by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on April 5, 2007)
| |
|
10.61 |
MAXXAM Revised Capital Accumulation Plan of 1988 (As Amended and Restated December 2007) (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2008; the “Capital Accumulation Plan”)
| |
|
10.62 |
Amendment, dated December 15, 2008, to the Capital Accumulation Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 16, 2008)
| |
|
*10.63 |
Amendment No. 2, effective as of December 31, 2008, to the Capital Accumulation Plan
| |
|
*10.64 |
MAXXAM Supplemental Executive Retirement Plan , as amended effective December 31, 2008
| |
|
*10.65 |
MAXXAM Supplemental Savings Plan, as amended effective January 1, 2008
| |
|
10.66 |
Form of deferred compensation agreement for executive officers of the Company (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2008)
| |
|
10.67 to
10.70 |
[Reserved]
|
|
Exhibit
Number |
Description | ||
|
*10.71 |
Restricted Stock Agreement (the “Hurwitz Restricted Stock Agreement”), dated December 13, 1999, between the Company and Charles E. Hurwitz
| ||
|
*10.72 |
Amendment, dated December 16, 2003, to the Hurwitz Restricted Stock Agreement
| ||
|
10.73 |
Separation, Release and Confidentiality Agreement, dated July 31, 2008, between the Company and J. Kent Friedman (incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K/A Amendment No. 1 filed on August 7, 2008) [Note: a portion of this exhibit has
been redacted and the redacted portion separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment]
| ||
|
10.74 |
MAXXAM Amended and Restated Non-Employee Director Stock Plan (incorporated herein by reference to Exhibit 99.1 to the Company’s Schedule 14A dated April 20, 2004; the “Director Plan”)
| ||
|
10.75 |
Form of Stock Option Agreement under the Director Plan (incorporated herein by reference to Exhibit 10.68 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006)
| ||
|
10.76 |
Form of deferred fee agreement for non-employee directors of the Company (incorporated herein by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2008)
| ||
|
*10.77 |
Deferred Fee Agreement, dated September 1, 1994, between the Company and Ezra G. Levin (“Levin Deferred Fee Agreement”)
| ||
|
*10.78 |
Amendment, dated April 3, 1996, to the Levin Deferred Fee Agreement
| ||
|
*10.79 |
Second Amendment, dated December 12, 2008, to the Levin Deferred Fee Agreement
| ||
|
*21.1 |
List of the Company’s Subsidiaries | ||
|
*23.1 |
Consent of Grant Thornton LLP
| ||
|
*23.2 |
Consent of Deloitte & Touche LLP | ||
|
**31.1 |
Section 302 Certification of Chief Executive Officer
| ||
|
**31.2 |
Section 302 Certification of Chief Financial Officer
| ||
|
*32 |
Section 906 Certification of Chief Executive Officer and Chief Financial Officer
| ||
|
*Previously included with the Form 10-K filed on March 31, 2009
**Included with this filing | |||