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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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W. R. GRACE & CO.
(FORMERLY NAMED GRACE SPECIALTY CHEMICALS, INC.)
(Exact name of registrant as specified in its charter)
DELAWARE 65-0773649
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7500 GRACE DRIVE
COLUMBIA, MARYLAND 21044
(Address of principal executive offices, including zip code)
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W. R. GRACE & CO. 2000 STOCK INCENTIVE PLAN
(Full title of the Plan)
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MARK A. SHELNITZ
W. R. GRACE & CO.
7500 GRACE DRIVE
COLUMBIA, MARYLAND 21044
410/531-4212
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED BE REGISTERED PER SHARE* OFFERING PRICE* REGISTRATION FEE
- ------------------------- ------------- ---------------- ---------------- ----------------
Common Stock, par value 8,000,000 Shares $13.3809 $107,047,200 $28,261
$0.01 per share
=============================================================================================================
</TABLE>
* Estimated for the sole purpose of computing the registration fee. Pursuant to
Rule 457(c), the stated price represents the average of the high and low
prices of the registrant's Common Stock in composite trading on May 10, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Securities Act of 1933 ("Securities Act") and
the regulations thereunder, the document or documents containing the information
specified in Part I of Form S-8 are not required to be filed with the Securities
and Exchange Commission ("SEC") as part of this Form S-8 Registration Statement
and, therefore, are not set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the SEC by W. R. Grace &
Co., formerly named Grace Specialty Chemicals, Inc. ("Company"), are hereby
incorporated by reference:
1. The Company's Annual Report on Form 10-K for the latest
fiscal year for which such a report has been filed.
2. All other reports filed by the Company with the SEC
pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 ("Exchange Act") since the end of the
latest fiscal year for which an Annual Report on Form 10-K
has been filed.
3. The description of the Company's Common Stock included
under the caption "Description of New Grace Capital Stock"
in the Company's Information Statement, dated February 13,
1998, included in a Registration Statement on Form 10 filed
March 13, 1998.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to such time as the Company files a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold, or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference to this Registration Statement and to be a part hereof from the date
of filing such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
EXPERTS. The financial statements incorporated in this
Registration Statement by reference to the Annual Report on Form 10-K of W. R.
Grace & Co. for the year ended December 31, 1999 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of such firm as experts in auditing and accounting.
COUNSEL. The validity of the Common Stock offered hereby will
be opined upon by David B. Siegel, Esq. Mr. Siegel is a Senior Vice President
and General Counsel of the Company, owns shares of the Company's Common Stock,
and holds options to purchase shares of the Company's Common Stock under one or
more of the Company's stock incentive plans.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
BY-LAWS; STATE LAW. Under its By-laws, the Company is
empowered, to the fullest extent permitted by Delaware law, to indemnify its
directors and officers. The By-laws provide that the Company will indemnify its
directors and officers against all expense, liability and loss (including
attorneys' fees, judgments, fines, excise taxes or penalties, and amounts paid
in settlement) resulting from various types of legal actions or proceedings if
the actions of the party being indemnified meet the standards of conduct
specified under Delaware law. Determinations concerning whether or not the
applicable standards have been met can be made by (a) a disinterested majority
of the Board of Directors, (b) independent legal counsel or (c) an affirmative
vote of a majority of the voting power held by stockholders entitled to vote
thereon.
INSURANCE. The directors and officers of the Company are
insured against losses arising from any claim against them as such for wrongful
acts or omissions, subject to certain limitations.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits have been filed with this Registration
Statement:
Exhibit No. Exhibit
----------- -------
5 Opinion of David B. Siegel, Esq.
15 Awareness Letter of PriceWaterhouseCoopers LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of David B. Siegel, Esq.
(contained in Exhibit 5)
24 Powers of Attorney
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) 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 paragraphs (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(b) 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.
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(c) 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.
(d) 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.
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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that is 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 Columbia, Maryland.
W. R. GRACE & CO.
By: Robert M. Tarola*
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Date: May 12, 2000 (Senior Vice President and
Chief Financial Officer)
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities indicated on May 12, 2000.
Signature Title
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Paul J. Norris* Director; Chairman, President
and Chief Executive Officer
(Principal Executive Officer)
John F. Akers* }
Ronald C. Cambre* }
Marye Anne Fox* } Directors
John J. Murphy* }
Robert M. Tarola* Senior Vice President
And Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
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* By signing his name hereto, Mark A. Shelnitz is signing this document on
behalf of each of the persons indicated above pursuant to powers of attorney
duly executed by such persons and filed with the Securities and Exchange
Commission.
By: /s/ MARK A. SHELNITZ
------------------------
Mark A. Shelnitz
(Attorney-in-Fact)
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EXHIBIT INDEX
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Exhibit No. Exhibit
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5 Opinion of David B. Siegel, Esq.
15 Awareness Letter of PriceWaterhouseCoopers LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of David B. Siegel, Esq.
(contained in Exhibit 5)
24 Powers of Attorney
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Exhibit 5
GRACE David B. Siegel
Senior Vice President and General Counsel
W. R. Grace & Co.
7500 Grace Drive
Columbia, MD 21044
Tel.: (410) 531-4170
Fax: (410) 531-4783
[email protected]
May 12, 2000
W. R. Grace & Co.
7500 Grace Drive
Columbia, Maryland 21044
Ladies and Gentlemen:
You have asked me, as General Counsel of W. R. Grace & Co., a
Delaware corporation ("Company"), to render my opinion regarding certain matters
in connection with a Registration Statement on Form S-8 ("Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933 covering 8,000,000 shares ("Shares")
of the Common Stock, par value $0.01 per share, of the Company issuable pursuant
to the Company's 2000 Stock Incentive Plan ("Plan").
I have examined, or caused to be examined, the Certificate of
Incorporation and By-laws of the Company, as amended to date, the records of its
corporate proceedings, the Plan, the Registration Statement and such other
documents as I have deemed necessary in connection with the opinion hereinafter
expressed.
Based on the foregoing, I am of the opinion that the Shares,
when issued in accordance with the terms of the Plan, will be validly issued and
outstanding, fully paid and nonassessable shares of the Company's Common Stock.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ DAVID B. SIEGEL
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Exhibit 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our report dated May 11, 2000 on our review of interim
financial information of W. R. Grace & Co., (the "Company") as of and for the
period ended March 31, 2000 and included in the Company's quarterly report on
Form 10-Q for the quarter then ended is incorporated by reference in its
Registration Statement on Form S-8 dated May 12, 2000.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Baltimore, Maryland
May 12, 2000
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of W. R. Grace & Co. of our report dated February 1, 2000
appearing on page F-3 of W. R. Grace & Co.'s Annual Report on Form 10-K for the
year ended December 31, 1999. We also consent to the incorporation by reference
of our report dated February 1, 2000 on the Financial Statement Schedule, which
appears on page F-2 of such Annual Report on Form 10-K. We also consent to the
reference to us under the heading "Experts" in Item 5 of such Registration
Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Baltimore, Maryland
May 12, 2000
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Exhibit 24
POWERS OF ATTORNEY
The undersigned hereby appoints MARK A. SHELNITZ and DAVID B.
SIEGEL as his/her true and lawful attorneys-in-fact for the purpose of signing
the registration statement on Form S-8, and all amendments thereto, to be filed
by W. R. GRACE & CO., a Delaware corporation ("Company"), with the Securities
and Exchange Commission with respect to the Company's 2000 Stock Incentive Plan.
Each of such attorneys-in-fact is appointed with full power to act without the
other.
/s/ John F. Akers /s/ Paul J. Norris
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John F. Akers Paul J. Norris
/s/ Ronald C. Cambre /s/ Robert M. Tarola
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Ronald C. Cambre Robert M. Tarola
/s/ Marye Anne Fox
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Marye Anne Fox
/s/ John J. Murphy Dated: May 10, 2000
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John J. Murphy
