As filed with the Securities Exchange Commission on October 22, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Union Carbide Corporation
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(Exact name of registrant as specified in its charter)
New York 13-1421730
- --------------------------------------- ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
39 Old Ridgebury Road, Danbury, CT 06817-0001
------------------------------------------------
(Address of principal executive offices)
1997 Stock Option Plan for Non-Employee
Directors of Union Carbide Corporation
------------------------------------------------
(Full title of the plan)
Joseph E. Geoghan, Esq.
Vice President, General Counsel and Secretary
Union Carbide Corporation
39 Old Ridgebury Road,
Danbury, CT 06817-0001
------------------------------------------------
(Name and address of agent for service)
(203) 794-2000
------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per share(1) aggregate offering price(1) registration fee
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, 200,000 shares $47.156 $9,431,200 $2,858.00
$1.00 par value
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) under the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices reported in the
consolidated reporting system on October 15, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified by Part I of
this Form S-8 Registration Statement (the "Registration Statement") will be sent
or given to participants in the 1997 Stock Option Plan for Non-Employee
Directors of Union Carbide Corporation (the "Plan") of Union Carbide
Corporation, a New York corporation (the "Company"), as specified in Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"). Such document(s) are not being filed with the Commission but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof), a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the
Commission and are hereby incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996, which includes a description of the Company's Common Stock.
(b) The description of the Company's Common Stock, which is set
forth in the Restated Certificate of Incorporation of the Registrant, as amended
and which is also incorporated by reference in Exhibit 3.1 to the Annual Report
of the Registrant on Form 10-K for the year ended December 31, 1994.
(c) All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721 through 726 of the New York Business Corporation Law
provide for indemnification of directors and officers. If a director or officer
is successful on the merits or otherwise in a legal proceeding, he must be
indemnified to the extent he was successful. Further, indemnification is
permitted in both third-party and derivative suits if he acted in good faith and
for a purpose he reasonably believed was in the best interest of the Company,
and if, in the case of a criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful.
Indemnification under this provision applies to judgments, fines,
amounts paid in settlement and reasonable expenses, in the case of third party
actions, and amounts paid in settlement and reasonable expenses, in the case of
derivative actions. In a derivative action,
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<PAGE>
however, a director or officer may not be indemnified for amounts paid to settle
such a suit or for any claim, issue or matter as to which such person shall have
been adjudged liable to the Company absent a court determination that the person
is fairly and reasonably entitled to indemnity.
Notwithstanding the failure of the Company to provide
indemnification and despite any contrary resolution of the board or
shareholders, indemnification shall be awarded by the proper court pursuant to
Section 724 of the New York Business Corporation Law.
Under New York law, expenses may be advanced upon receipt of an
undertaking by or on behalf of the director or officer to repay the amounts in
the event the recipient is ultimately found not to be entitled to
indemnification. The advance is conditioned only upon receipt of the undertaking
and not upon a finding that the officer or director has met the applicable
indemnity standards.
Article V of the Company's By-Laws requires it to indemnify each of
its past, present and future directors, officers and employees to the fullest
extent permitted by law for any and all costs and expenses resulting from or
relating to any suit or claim arising out of service to the Company or to other
organizations at the Company's request.
The Company has entered into indemnity agreements with each of its
directors and officers which require the Company, among other things, to
indemnify each director or officer for all costs and expenses of suits and
claims (to the fullest extent permitted by law), and to advance to each director
or officer the costs and expenses of defending any suit or claim if such
director or officer undertakes to pay back such advances to the extent required
by law. These provisions do not apply to any suit or claim voluntarily commenced
by the director or officer against the Company, unless the institution of such
proceeding was approved by a majority of the Board of Directors or the director
or officer is successful on the merits in such proceeding.
Section 402 of the New York Business Corporation Law permits the
Company to include in its certificate of incorporation provisions eliminating
the personal liability of directors to the Company or its shareholders for any
breach of duty in such capacity unless a judgment or final adjudication adverse
to the director that his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that he personally
gained a financial profit or other advantage to which he was not legally
entitled or his acts violated Section 719 of the New York Business Corporation
Law. The certificate of incorporation of the Company contains a provision
eliminating the personal liability of its directors to the Company and its
shareholders except to the extent such liability may not be eliminated by law.
The Company carries directors' and officers' insurance which covers
its directors and officers against certain liabilities they may incur when
acting in their capacity as directors or officers of the Company.
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<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
4.1 1997 Stock Option Plan for Non-Employee Directors of Union Carbide
Corporation (incorporated by reference to Registrant's Proxy
Statement dated March 12, 1997, filed in connection with its Annual
Meeting of Shareholders held on April 23, 1997)
4.2 Restated Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1 to the Annual Report of
the Registrant on Form 10-K for the year ended December 31, 1994)
5 Opinion of Kelley Drye & Warren LLP, Counsel to Company, as to the
legality of the shares being registered under this Registration
Statement
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors
23.2 Consent of Kelley Drye & Warren LLP (included in opinion filed
as Exhibit 5)
24 Powers of Attorney of Directors and Certain Officers of the
Company (included on the signature pages hereof)
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
THE UNDERSIGNED COMPANY 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; and (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 subparagraphs
(i) and (ii) do not apply if the information required to be included in a
post-effective amendment by those subparagraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 ("1934 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.
(4) That, for the purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the 1934 Act (and where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the 1934 Act), that it
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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions described in Item 6 of this
Registration Statement, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by controlling
II-4
<PAGE>
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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Danbury, State of Connecticut on this 24th day of
September, 1997.
UNION CARBIDE CORPORATION
By: JOHN K. WULFF
---------------------------------------
John K. Wulff
Vice President, Chief Financial Officer
and Controller
(Principal Financial and Accounting
Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Union Carbide
Corporation, hereby severally constitute and appoint William M. Joyce and John
K. Wulff, and each of them singly, our true and lawful attorney, with full power
to them, to sign for us in our names in the capacities indicated below, this
registration statement and any and all post-effective amendments to this
Registration Statement, and generally to do all things in our name and on our
behalf in such capacities to enable Union Carbide Corporation to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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 dates stated.
SIGNATURE TITLE DATE
Chairman of the Board,
WILLIAM H. JOYCE President, Chief Executive September 24, 1997
- ----------------------- Officer and Director
William H. Joyce (Principal Executive Officer)
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<PAGE>
Vice-President, Chief Financial
JOHN K. WULFF Officer and Controller September 24, 1997
- ----------------------- (Principal Financial and
John K. Wulff Accounting Officer)
JOHN J. CREEDON Director September 24, 1997
- -----------------------
John J. Creedon
C. FRED FETTEROLF Director September 24, 1997
- -----------------------
C. Fred Fetterolf
JOSEPH E. GEOGHAN Director September 24, 1997
- -----------------------
Joseph E. Geoghan
THOMAS P. GERRITY Director September 24, 1997
- -----------------------
Thomas P. Gerrity
- ----------------------- Director September 24, 1997
Rainer E. Gut
II-7
<PAGE>
VERNON E. JORDAN, JR. Director September 24, 1997
- ---------------------
Vernon E. Jordan, Jr.
- ----------------------- Director September 24, 1997
Robert D. Kennedy
RONALD L. KUEHN, JR. Director September 24, 1997
- ---------------------
Ronald L. Kuehn, Jr.
ROZANNE L. RIDGWAY Director September 24, 1997
- -----------------------
Rozanne L. Ridgway
JAMES M. RINGLER Director September 24, 1997
- -----------------------
James M. Ringler
WILLIAM S. SNEATH Director September 24, 1997
- -----------------------
William S. Sneath
II-8
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 1997 Stock Option Plan for Non-Employee Directors of
Union Carbide Corporation (incorporated by reference
to Registrant's Proxy Statement dated March 12, 1997,
filed in connection with its Annual Meeting of
Shareholders held on April 23, 1997).
4.2 Restated Certificate of Incorporation of the Registrant,
as amended (incorporated by reference to Exhibit 3.1 to
the Annual Report of the Registrant on Form 10-K for
the year ended December 31, 1994).
5 Opinion of Kelley Drye & Warren LLP, Counsel to
Company, as to the legality of the shares being
registered under this Registration Statement
23.1 Consent of KPMG Peat Marwick LLP, Independent
Auditors
23.2 Consent of Kelley Drye & Warren LLP (included in
opinion filed as Exhibit 5)
24 Powers of Attorney of Directors and Certain Officers of
the Company (included on the signature pages hereof)
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EXHIBIT 5
<PAGE>
October 21, 1997
Board of Directors
Union Carbide Corporation
39 Old Ridgebury Road
Danbury, CT 06817-0001
Re: Registration Statement on Form S-8 for
1997 Stock Option Plan for Non-Employee
Directors of Union Carbide Corporation
---------------------------------------
Dear Sirs:
We are acting as counsel to Union Carbide Corporation, a New York
Corporation ("Corporation"), in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, ("Act") with the Securities and Exchange
Commission ("Commission") relating to the registration of 200,000 shares of
common stock, $1.00 par value per share (the "Common Stock"), of the Corporation
offered for sale pursuant to 1997 Stock Option Plan for Non-Employee Directors
of Union Carbide Corporation (the "Plan").
In connection with this opinion, we have examined and are familiar
with originals or copies, certified or otherwise identified to our satisfaction,
of such documents, corporate records, certificates of public officials and
officers of the Corporation and such other instruments as we have deemed
necessary or appropriate as a basis for the opinions expressed below.
<PAGE>
Board of Directors
Union Carbide Corporation -2- October 21, 1997
For purposes of this opinion we have assumed the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies. We
have also assumed the legal capacity of all natural persons, the genuineness of
all signatures on all documents examined by us, the authority of such persons
signing on behalf of the parties thereto other than the Corporation and the due
authorization, execution and delivery of all documents by the parties thereto
other than the Corporation. As to certain factual matters material to the
opinion expressed herein, we have relied to the extent we deemed proper upon
representations, warranties and statements as to matters of officers and other
representatives of the Corporation. Our opinion expressed below is subject to
the qualification that we express no opinion as to any law other than the laws
of the State of New York and the federal laws of the United States of America.
Without limiting the foregoing, we express no opinion with respect to the
applicability thereto or effect of municipal laws or the rules, regulations or
orders of any municipal agencies within any such state.
Based upon the foregoing, we are of the opinion that:
1. The Corporation has been duly organized and is validly
existing under the laws of the State of New York.
2. The Plan has been duly adopted by the Board of Directors of the
Corporation and approved by the shareholders of the Corporation.
3. The shares of Common Stock of the Corporation to which the
Registration Statement relates have been duly authorized and reserved for
issuance pursuant to the Plan and, when issued and sold pursuant to the Plan,
will be legally issued, fully paid and non-assessable.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the federal laws of the United States of
America be changed by legislative action, judicial decision or otherwise.
We hereby consent to the filing of this letter as an Exhibit 5 to
the Registration Statement. In giving such consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Commission promulgated thereunder.
<PAGE>
Board of Directors
Union Carbide Corporation -3- October 21, 1997
This opinion is furnished to you in connection with the filing of
the Registration Statement and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose.
Very truly yours,
KELLEY DRYE & WARREN LLP
EXHIBIT 23.1
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors of
Union Carbide Corporation
We consent to the use of our reports incorporated herein by reference.
KPMG PEAT MARWICK LLP
Stamford, Connecticut
October 21, 1997
<PAGE>
