<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 or 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1994
Commission File Number 1-4654
WITCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-1870000
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
520 Madison Avenue, New York, New York 10022-4236
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 605-3800
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 was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
YES X NO
----- -----
The number of shares of common stock outstanding is as follows:
Class Outstanding at April 30, 1994
Common Stock-$5 par value 56,020,897
<PAGE>
WITCO CORPORATION
FORM 10-Q
March 31, 1994
<TABLE>
<CAPTION>
CONTENTS PAGE
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<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed consolidated balance sheets at March 31, 1994
and December 31, 1993......................................................................... 2
Condensed consolidated statements of income for the three months ended
March 31, 1994 and 1993....................................................................... 3
Condensed consolidated statements of cash flows for the three months ended
March 31, 1994 and 1993....................................................................... 4
Notes to condensed consolidated financial statements.......................................... 5
Independent accountants' report on review of interim financial information.................... 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations......... 8
PART II. OTHER INFORMATION
Item 1. Legal Proceedings............................................................................. 11
Item 4. Submission of Matters to a Vote of Security Holders........................................... 12
Item 6. Exhibits and Reports on Form 8-K.............................................................. 13
</TABLE>
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
WITCO CORPORATION AND SUBSIDIARY COMPANIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1994 1993(a)
----------- ------------
(UNAUDITED)
<S> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents.............................. $ 169,772 $ 183,050
Accounts and notes receivable-net...................... 389,671 340,850
Inventories
Raw materials and supplies........................... $ 88,288 $81,440
Finished goods....................................... 142,031 230,319 146,029 227,469
--------- ---------
Prepaid and other current assets....................... 47,732 41,204
----------- ------------
TOTAL CURRENT ASSETS.............................. 837,494 792,573
----------- ------------
PROPERTY, PLANT AND EQUIPMENT -- less accumulated
depreciation of $645,704 and $621,684..................... 702,484 696,462
INTANGIBLE ASSETS -- less accumulated amortization of
$42,316 and $38,612....................................... 215,368 217,032
OTHER ASSETS................................................ 121,845 132,931
----------- ------------
TOTAL ASSETS...................................... $ 1,877,191 $1,838,998
----------- ------------
----------- ------------
LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES
Notes and loans payable................................ $ 2,846 $ 4,194
Accounts payable and other current liabilities......... 367,459 337,144
----------- ------------
TOTAL CURRENT LIABILITIES......................... 370,305 341,338
----------- ------------
LONG-TERM DEBT............................................ 347,356 496,266
DEFERRED FEDERAL AND FOREIGN INCOME TAXES................. 74,095 74,612
DEFERRED CREDITS AND OTHER LIABILITIES.................... 207,566 213,367
SHAREHOLDERS' EQUITY
$2.65 Cumulative Convertible Preferred Stock, par value
$1 per share Authorized -- 14 shares Issued and
outstanding -- 8 and 9 shares........................ 8 9
Common Stock, par value $5 per share
Authorized -- 100,000 shares Issued -- 56,312 and
50,818 shares........................................ 281,558 254,089
Capital in excess of par value......................... 127,200 6,123
Equity adjustments:
Foreign currency translation......................... (17,571) (23,723)
Pensions............................................. (6,548) (6,548)
Retained earnings...................................... 497,646 488,241
Less cost of 295 and 318 shares of common stock in
treasury............................................. (4,424) (4,776)
----------- ------------
TOTAL SHAREHOLDERS' EQUITY........................ 877,869 713,415
----------- ------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY........ $ 1,877,191 $1,838,998
----------- ------------
----------- ------------
</TABLE>
- - ------------
(a) The balance sheet at December 31, 1993, has been derived from the audited
financial statements at that date.
See accompanying notes.
2
<PAGE>
WITCO CORPORATION AND SUBSIDIARY COMPANIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
---------------------------------------------------------------------------
1994 1993
------------------------------------ -----------------------------------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C>
REVENUES
Net sales.......................................... $553,417 $553,174
Interest........................................... 2,224 1,814
----------- -----------
555,641 554,988
----------- -----------
COSTS AND EXPENSES
Cost of goods sold (exclusive of depreciation and
amortization)................................... 426,560 431,636
Selling and administrative expenses................ 60,886 59,853
Depreciation and amortization...................... 26,541 26,913
Interest........................................... 8,314 7,717
Other expense (income) net......................... (570) 200
----------- -----------
521,731 526,319
----------- -----------
INCOME BEFORE FEDERAL AND FOREIGN INCOME TAXES....... 33,910 28,669
FEDERAL AND FOREIGN INCOME TAXES..................... 11,869 9,862
----------- -----------
NET INCOME........................................... $ 22,041 $ 18,807
----------- -----------
----------- -----------
PER COMMON SHARE:
Net Income......................................... $.41 $.40
Net Income -- assuming full dilution............... $.41 $.40
Dividends declared................................. $.25 $.23
Weighted average number of common shares and
equivalents -- primary............................. 56,432 50,687
----------- -----------
----------- -----------
</TABLE>
See accompanying notes.
3
<PAGE>
WITCO CORPORATION AND SUBSIDIARY COMPANIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1994 1993
-------- --------
(IN THOUSANDS)
<S> <C> <C>
NET CASH PROVIDED BY OPERATING ACTIVITIES............................. $ 22,874 $ 7,125
-------- --------
INVESTING ACTIVITIES
Expenditures for property, plant and equipment...................... (23,945) (22,064)
Other investing activities.......................................... 373 (2,434)
-------- --------
Net Cash Used in Investing Activities............................ (23,572) (24,498)
-------- --------
FINANCING ACTIVITIES
Proceeds from common stock offering................................. -- 142,169
Payments on borrowings.............................................. (1,967) (143,749)
Dividends paid...................................................... (12,630) (10,221)
Other financing activities.......................................... 348 4,444
-------- --------
Net Cash Used in Financing Activities............................ (14,249) (7,357)
-------- --------
Effects of Exchange Rate Changes on Cash and Cash Equivalents......... 1,669 489
-------- --------
DECREASE IN CASH AND CASH EQUIVALENTS................................. (13,278) (24,241)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD...................... 183,050 134,447
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD............................ $169,772 $110,206
-------- --------
-------- --------
</TABLE>
See accompanying notes.
4
<PAGE>
WITCO CORPORATION AND SUBSIDIARY COMPANIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE A -- BASIS OF PREPARATION
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and Rule
10-01 of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments considered
necessary for a fair presentation have been included. All such adjustments are
of a normal recurring nature. Operating results for the three month period ended
March 31, 1994, are not necessarily indicative of the results that may be
expected for the year ending December 31, 1994. For further information, refer
to the consolidated financial statements and footnotes thereto included in the
company's annual report on Form 10-K for the year ended December 31, 1993.
The condensed consolidated financial statements at March 31, 1994, and for
the three month periods ended March 31, 1994 and 1993, have been reviewed, prior
to filing, in accordance with standards established by the American Institute of
Certified Public Accountants, by independent accountants, Ernst & Young, and
their report is included herein.
NOTE B -- COMMON STOCK SPLIT
On September 2, 1993, the Board of Directors of the company authorized a
two for one common stock split in the form of a 100% stock distribution issuable
to shareholders of record as of September 16, 1993. The distribution was made on
October 5, 1993. All common stock share and per share data for all periods
presented reflect the split.
NOTE C -- REDEMPTION OF 5 1/2% CONVERTIBLE DEBENTURES
In March 1994, the company called for redemption all of its $150,000,000
outstanding 5 1/2% Convertible Subordinated Debentures due 2012. Through March
31, 1994, $149,874,000 of the principal had been converted into approximately
5,494,000 shares of common stock at a conversion price of $27.28 per share and
$110,000 of the principal was redeemed for cash at a premium of 1.65%. The
remaining $16,000 of principal was converted into common stock in April 1994.
Since the shares underlying the debentures had been previously included as
common stock equivalents, the shares converted have no effect on net income per
common share calculations.
NOTE D -- LITIGATION AND ENVIRONMENTAL
The company has been notified, or is a named or a potentially responsible
party in a number of governmental (federal, state, and local) and private
actions associated with environmental matters, such as those relating to
hazardous wastes, including certain sites which are on the United States EPA
National Priorities List. These actions seek cleanup costs, penalties and/or
damages for personal injury or damage to property or natural resources.
The company evaluates and reviews environmental reserves for future
remediation and compliance costs on a quarterly basis to determine appropriate
reserve amounts. Inherent in this process are considerable uncertainties which
affect the company's ability to estimate the ultimate costs of remediation
efforts. Such uncertainties include the nature and extent of contamination at
each site, evolving governmental standards regarding remediation requirements,
the number and financial condition of other potentially responsible parties at
multi-party sites, innovations in remediation and restoration technology, and
the identification of additional environmental sites.
At March 31, 1994, the company's reserves for environmental remediation and
compliance costs amounted to $97,983,000, reflecting Witco's estimate of the
costs which will be incurred over an extended period of time in respect of these
matters which are reasonably estimable.
5
<PAGE>
NOTE D -- LITIGATION AND ENVIRONMENTAL (CONTINUED)
The company has numerous insurance policies which it believes provide
coverage at various levels for environmental liabilities. The company is
currently in litigation with many of its insurers concerning the applicability
and amount of insurance coverage for environmental costs under certain of these
policies. No provision for recovery under any of these policies is included in
the company's financial statements.
The company is not a party to any legal proceedings, including
environmental matters, which it believes will have a material adverse effect on
its consolidated financial position.
6
<PAGE>
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
The Board of Directors
WITCO CORPORATION
We have reviewed the accompanying condensed consolidated balance sheet of
Witco Corporation and Subsidiary Companies as of March 31, 1994, and the related
condensed consolidated statements of income and cash flow for the three-month
periods ended March 31, 1994 and 1993. These financial statements are the
responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data, and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, which will be performed
for the full year with the objective of expressing an opinion regarding the
financial statements taken as a whole. Accordingly, we do not express such an
opinion.
Based on our reviews, we are not aware of any material modifications that
should be made to the accompanying condensed consolidated financial statements
referred to above for them to be in conformity with generally accepted
accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Witco Corporation and Subsidiary
Companies as of December 31, 1993, and the related consolidated statements of
income, shareholders' equity, and cash flows for the year then ended (not
presented herein) and in our report dated January 27, 1994, except for Note 7,
as to which the date is March 11, 1994, we expressed an unqualified opinion on
those consolidated financial statements. In our opinion, the information set
forth in the accompanying condensed consolidated balance sheet as of December
31, 1993, is fairly stated, in all material respects, in relation to the
consolidated balance sheet from which it has been derived.
ERNST & YOUNG
Stamford, Connecticut
May 10, 1994
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
LIQUIDITY AND FINANCIAL RESOURCES
Cash flow from operating activities during the first three months of 1994
totalled $22.9 million, reversing a three year trend of relatively flat first
quarter operating cash flow. This improvement is primarily attributable to
management's efforts to closely monitor and control working capital
requirements. The company anticipates that cash flow from operations will be
sufficient to fund, for the foreseeable future, capital investments, dividend
payments, commitments on environmental remediation projects, and operating
requirements.
Late in the first quarter the company completed its previously announced
redemption of all of its $150 million outstanding 5 1/2% Convertible
Subordinated Debentures due 2012. $149.9 million of this debt was converted into
the company's common stock. The redemption was called to provide greater
financial flexibility as the company continues in its efforts to expand product
lines and marketing capabilities of its core businesses. See Note C to the
Financial Statements for a further discussion regarding the redemption.
CAPITAL INVESTMENTS AND COMMITMENTS
Capital expenditures during the first quarter of 1994 amounted to $23.9
million compared to $22.1 million during the same period of 1993. Capital
expenditures are expected to approximate $110 million in 1994, an amount
slightly higher than the 1993 record of $103.7 million.
In the first quarter the company's Board of Directors approved a capital
appropriation of $9.4 million for a new waste gas disposal system at its
Bergkamen, Germany facility. This new system will enable the plant to operate
within the guidelines of changing German legislation concerning plant emission
limits. In addition, as the waste gas has a considerable heat value, the energy
recovered from incineration will be utilized for the production of steam,
resulting in an annual savings of approximately $1.7 million. The estimated
completion date for this project is December 1995.
CONTINGENCIES
The company has been notified, or is a named or a potentially responsible
party in a number of governmental (federal, state, and local) and private
actions associated with environmental matters, such as those relating to
hazardous wastes, including certain sites which are on the United States EPA
National Priorities List. These actions seek cleanup costs, penalties and/or
damages for personal injury or damage to property or natural resources.
The company is not a party to any legal proceedings or environmental
matters which it believes will have a material adverse effect on its
consolidated financial position. It is possible however, that future results of
operations and cash flows, for any particular quarterly or annual period, could
be materially affected by such legal proceedings or environmental matters.
However, the company does not expect the results of such proceedings or
environmental matters to materially affect its competitive position.
RESULTS OF OPERATIONS
First quarter 1994 sales of $553.4 million were the highest reported for
any quarter in the company's history. Despite the fourth quarter 1993
disposition of the company's Chemprene operations, which contributed
approximately $8 million to first quarter 1993 sales, current quarter sales were
$.2 million over those reported for the same period of 1993. Global shipment
volume, excluding Chemprene, rose 5 percent, the effect however, was negated by
a 4 percent decline in sales prices.
8
<PAGE>
Net income for the first quarter of 1994 was $22.0 million. Current quarter
income increased 17 percent over the first quarter of 1993 despite a $1.3
million increase in domestic pension costs attributable to plan amendments and
assumption changes. The $3.2 million increase in net income was mainly
attributable to a 1 percent improvement in gross profit margins. Reductions in
raw material feedstock costs and operating efficiencies, in both the Chemical
and Petroleum Segments, accounted for the higher margins.
Segment sales and operating income for the first quarter of 1994 and 1993
are set forth in the following table. Income and expenses of a general corporate
nature are not allocated to industry segments in computing operating income.
These include general corporate expenses, interest income and expense, and
certain other income and expenses.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
-------------------------------
1994 1993
---- ----
(UNAUDITED -- IN MILLIONS)
<S> <C> <C>
Net Sales
Chemical..................................................... $334.7 $330.9
Petroleum.................................................... 179.6 180.0
Diversified products......................................... 43.3 46.7
Intersegment elimination..................................... (4.2) (4.4)
------ ------
Total Net Sales......................................... $553.4 $553.2
------ ------
------ ------
Operating Income
Chemical..................................................... $ 31.6 $ 29.0
Petroleum.................................................... 12.4 8.6
Diversified products......................................... 3.4 2.9
------ ------
Total Operating Income.................................. $ 47.4 $ 40.5
------ ------
------ ------
</TABLE>
Domestic operations accounted for 71 percent of the company's net sales and
62 percent of its operating income for the first quarter of 1994. These figures
were comparable to those of the first quarter of 1993.
CHEMICAL SEGMENT
Segment sales for the first quarter of 1994 rose 1 percent compared to the
same quarter of 1993. A 4 percent increase in volume, partially offset by lower
sales prices, accounted for the modest increase. Operating income for the first
three months of 1994 increased $2.6 million, or 9 percent, over the same period
of the prior year. Each of the segment's business groups achieved higher
earnings. The largest improvement was achieved by the International/Europe Group
which reported an increase in operating income of approximately 15 percent. Cost
saving initiatives and the consolidation of sales and administrative functions
in Europe led to the favorable operating results. International/Europe Group
sales were unchanged for this comparative period despite an 11 percent increase
in sales volume. The effect of higher volume was completely offset by a
corresponding decline in sales prices, due partially to the strengthening of the
dollar. The Polymer Additives Group reported improved operating results
primarily attributable to the group's Olefins/Styrenics strategic business unit.
A favorable sales mix coupled with lower costs of key feedstocks enhanced the
profitability of this unit. Higher earnings were reported by the
Oleochemicals/Surfactants Group mainly reflective of a 2 percent increase in
sales volume.
9
<PAGE>
PETROLEUM SEGMENT
Net sales for this segment were flat when comparing the first quarters of
1994 and 1993. Sales volume rose 5 percent in 1994 however, sales prices
declined a corresponding 5 percent reflecting a reduction in raw material costs.
Segment earnings for the first quarter of 1994 were up 44 percent compared to
the first quarter of 1993. The Lubricants Group accounted for approximately 60
percent of the segment's higher earnings, while the remaining portion was
attributable to the Petroleum Specialties Group. Each group achieved gross
profit margins that were 2 percent above the prior year. The increased
profitability of the Lubricants Group was a result of the group's ability to
retain part of the savings gained through lower crude oil and feedstock costs
coupled with increased motor oil sales. The improvement in the Petroleum
Specialties Group's earnings was due to the timing of the annual maintenance
shutdown at the group's largest domestic facility, combined with lower prices
paid for base feedstocks used at its Canadian operation. The shutdown which
took place during the first quarter of 1993 is scheduled for the third quarter
of the current year.
DIVERSIFIED PRODUCTS
First quarter 1993 sales included approximately $8 million attributable to
the former Chemprene Division. A quarterly comparison of sales, excluding those
attributable to Chemprene, shows an increase of 12 percent, from $38.6 million
in 1993 to $43.3 million in 1994. Sales rose as a result of increased demand for
carbon black products and battery components. Increased North American vehicle
production created a full capacity carbon black market while the severe winter
fueled the demand for batteries. Operating income, excluding Chemprene's
contribution to first quarter 1993 segment results, increased $1.5 million.
Approximately 80 percent of the higher earnings were a result of the greater
demand for batteries.
OUTLOOK
The company will continue to concentrate on its core businesses. As part of
this focus, Witco sold the assets of its metal finishing business of the
Allied-Kelite Division in May 1994. The remaining metal working business of
Allied-Kelite and the Battery Parts Division are slated for disposition later
this year.
Executive management is satisfied with first quarter results of record
sales and substantially higher earnings, considering current economic
conditions. The company is encouraged by signs of improved global economic
conditions and is confident that it is well positioned to benefit from any
strengthening of the world economy.
10
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The company has been notified, or is named as a potentially responsible
party ('PRP') or a defendant in a number of governmental (federal, state, and
local) and private actions associated with environmental matters, such as those
relating to hazardous wastes. These actions seek remediation costs, penalties
and/or damages for personal injury or damage to property or natural resources.
As of December 31, 1993, the company had been identified as a PRP in connection
with forty sites which are subject to the federal Superfund Program under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
('CERCLA'). With two exceptions, all the Superfund sites in which the company is
involved are multi-party sites, and, in most cases, there are numerous other
potentially responsible parties in addition to the company. CERCLA authorizes
the federal government to remediate a Superfund site itself and to assess the
costs against the responsible parties, or to order the responsible parties to
remediate the site.
The company evaluates and reviews environmental reserves for future
remediation and other costs on a quarterly basis to determine appropriate
reserve amounts. Inherent in this process are considerable uncertainties which
affect the company's ability to estimate the ultimate costs of remediation
efforts. Such uncertainties include the nature and extent of contamination at
each site, evolving governmental standards regarding remediation requirements,
the number and financial condition of other potentially responsible parties at
multi-party sites, innovations in remediation and restoration technology, and
the identification of additional environmental sites.
The company is a defendant in a case filed in October 1992 by the United
States Department of Justice on behalf of the United States Environmental
Protection Agency styled United States v. Witco, et al. pending in the United
States District Court for the Eastern District of California. The United States
alleged that the company has violated the Clean Air Act, the Safe Water Drinking
Act, and the Resource Conservation and Recovery Act in connection with certain
activities at its Oildale, California, refinery. The United States seeks
unspecified civil penalties and certain injunctive relief in this action.
The company has numerous insurance policies which it believes provide
coverage at various levels for environmental liabilities. The company is
currently in litigation with many of its insurers concerning the applicability
and amount of insurance coverage for environmental costs under certain of these
policies. No provision for recovery under any of these policies is included in
the company's financial statements.
The company is not a party to any legal proceedings, including
environmental matters, which it believes will have a material adverse effect on
its consolidated financial position.
11
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The company's annual Meeting of Shareholders was held on April 27,
1994, at the Chase Manhattan Bank, N.A., 410 Park Avenue, New York, New York at
2:00 p.m.
(b) The company's shareholders elected four directors at said Annual
Meeting to serve a term of three years, as follows:
<TABLE>
<CAPTION>
VOTES
----------------------
FOR WITHHELD
---------- --------
<S> <C> <C>
Simeon Brinberg...................................................... 44,641,098 116,627
William R. Grant..................................................... 44,391,751 365,974
Richard M. Hayden.................................................... 44,482,407 275,318
William R. Toller.................................................... 44,468,945 288,780
</TABLE>
Directors who did not stand for election and continue in office until the
1995 Annual Meeting are: William J. Ashe, William G. Burns, William E. Mahoney,
L. John Polite, Jr., and William Wishnick. Directors who did not stand for
election and continue in office until the 1996 Annual Meeting are: Denis
Andreuzzi, Harry G. Hohn, Dan J. Samuel, and Bruce F. Wesson.
(c) In addition to the election of four directors, the company's
shareholders:
(i) Approved an amendment to the company's Restated Certificate of
Incorporation regarding the indemnification of directors and officers.
<TABLE>
<CAPTION>
VOTES
------------------------------------
FOR AGAINST ABSTAIN
---------- ------- -------
<S> <C> <C>
43,776,384 811,798 169,543
</TABLE>
(ii) Approved a form of indemnification agreement between the company
and its directors and officers.
<TABLE>
<CAPTION>
VOTES
------------------------------------
FOR AGAINST ABSTAIN
---------- ------- -------
<S> <C> <C>
43,622,162 949,294 186,269
</TABLE>
(iii) Approved the amendment and restatement in full of the company's
present Restated Certificate of Incorporation.
<TABLE>
<CAPTION>
VOTES
------------------------------------
FOR AGAINST ABSTAIN
---------- ------- -------
<S> <C> <C>
44,207,944 263,285 286,496
</TABLE>
(iv) Ratified the appointment of Ernst & Young as the company's
independent auditors for 1994.
<TABLE>
<CAPTION>
VOTES
------------------------------------
FOR AGAINST ABSTAIN
---------- ------- -------
<S> <C> <C>
44,582,313 29,025 146,387
</TABLE>
12
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<S> <C>
2 Not applicable
3(i) Articles of Incorporation
3(ii) By-laws
4 Not applicable
11 Statement re computation of per share earnings
15 Letter re unaudited financial information
18 Not applicable
19 Not applicable
20 Not applicable
23 Not applicable
24 Not applicable
25 Not applicable
28 Not applicable
</TABLE>
(b) Reports on Form 8-K
The company filed a Current Report on Form 8-K, dated January 19, 1994,
pertaining to the company's announcement that it would take a $92.6 million
charge ($60.1 million after tax, or $1.10 per common share) against earnings in
the fourth quarter which ended December 31, 1993.
13
<PAGE>
SIGNATURES
Pursuant to the requirements 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.
WITCO CORPORATION
(Registrant)
Date: May 12, 1994 /s/ Michael D. Fullwood
................................
Michael D. Fullwood
Executive Vice President and
Chief Financial Officer
Date: May 12, 1994 /s/ Dustan E. McCoy
................................
Dustan E. McCoy
Vice President - General Counsel
and Corporate Secretary
14
<PAGE>
EXHIBIT 3(i)
RESTATED
CERTIFICATE OF INCORPORATION
OF
WITCO CORPORATION
Witco Corporation, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as
follows:
1. The name of the Corporation is Witco Corporation. Witco
Corporation was originally incorporated under the name 'Witkem,
Inc.', which was changed by merger to 'Witco Chemical Company,
Inc.' which was changed by amendment to the Articles of
Incorporation to 'Witco Chemical Corporation', which was changed
by amendment to the Articles of Incorporation to the present
name. The original Certificate of Incorporation of Witkem, Inc.
was filed with the Secretary of State of the State of Delaware on
June 12, 1958.
2. This Restated Certificate of Incorporation amends and
restates the provisions of the restated Certificate of
Incorporation of this corporation as heretofore amended or
supplemented.
3. The text of the Restated Certificate of Incorporation as
heretofore amended or supplemented is hereby amended and restated
to read in its entirety as follows:
ARTICLE I
The name of the corporation (which is hereinafter referred
to as the 'Company') is Witco Corporation.
ARTICLE II
The registered office of the Company is to be located at
1209 Orange Street, in the City of Wilmington, in the County of
New Castle, in the State of Delaware. The name of its registered
agent at that address is The Corporation Trust Company.
ARTICLE III
<PAGE>
The purpose of the Company is to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of Delaware.
ARTICLE IV
The aggregate number of shares which the Company shall have
authority to issue is 108,314,386 divided into classes as
follows: 14,386 shares shall be $2.65 Cumulative Convertible
Preferred Stock, $1.00 par value per share; 8,300,000 shares
shall be Series Preferred Stock, without par value; 100,000,000
shares shall be Common Stock, $5.00 par value per share.
The following is a statement of the designations and the
powers, preferences and rights of the classes of the stock of the
Company:
$2.65 Cumulative Convertible Preferred Stock
1. Dividends. The holders of the $2.65 Cumulative
Convertible Preferred Stock (hereinafter referred to as the
'$2.65 Preferred Stock', in preference to the holders of Series
Preferred Stock and Common Stock, shall be entitled to receive as
and when declared by the Board of Directors, out of the assets of
the Company which are by law available for the payment of
dividends, cumulative cash dividends at, but not exceeding, the
rate of $2.65 per share per annum, payable quarterly on the tenth
day of January, April, July and October. Dividends upon the $2.65
Preferred Stock shall be cumulative so that, if in respect of any
past quarter-yearly dividend period full dividends upon the
outstanding $2.65 Preferred Stock shall not have been paid, the
deficiency shall be fully paid or set apart for payment before
any dividend shall be declared and paid or set apart for payment
upon the Series Preferred Stock or the Common Stock and before
any assets available for the payment of dividends shall be paid
or set apart for the purchase of any shares of Series Preferred
Stock or Common Stock.
2. Redemption. The $2.65 Preferred Stock may be redeemed in
whole or in part by the Company at any time on or after July 10,
1971. The sums payable upon redemption (in addition to accrued
and unpaid dividends up to and including the date fixed for
redemption) shall be $67.00 per share if redeemed during the
first year following July 10, 1971, $66.50 per share if redeemed
during the second year and $66.00 per share if redeemed during
the third and following years. If less than all outstanding
shares of the $2.65 Preferred Stock are to be redeemed, the
shares to be redeemed shall be chosen by lot or pro rata in such
manner as the Board of Directors may determine; provided,
however, that if full cumulative dividends shall not have been
paid or declared and set apart for payment for all quarterly
dividend periods up to and including the current dividend period,
then the Company shall not call for redemption any shares of the
$2.65 Preferred Stock unless either (a) all shares of the $2.65
Preferred Stock then outstanding are called for simultaneous
redemption, or (b) if less than all shares of the $2.65 Preferred
Stock outstanding are called for redemption at any time, the
number of shares called for redemption from each registered
holder at that time shall be that number which bears the same
proportion to the total number of shares of the $2.65 Preferred
Stock then outstanding, except that in so determining the number
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of shares called, fractions of less than one-half share shall be
disregarded and fractions of more than one-half share be treated
as one whole share.
Not less than 30 nor more than 60 days prior to the date
fixed for redemption, a notice specifying the time and place
thereof shall be given by mail to the holders of record of the
shares of $2.65 Preferred Stock to be redeemed at their
respective addresses as the same shall appear on the stock books
of the Company, but no failure to mail such notice, nor any
defect therein or in the mailing thereof, shall affect the
validity of the redemption except as to the holder to whom the
Company has failed to mail said notice or as to whom the notice
was defective. From and after the date fixed in such notice as
the date of redemption, unless default be made by the Company in
providing funds sufficient for the payment of the redemption
price, all dividends upon the shares thereby called for
redemption shall cease to accrue, and all rights of the holders
thereof as stockholders of the Company shall cease and terminate
except the right to receive payment of the redemption price, but
without interest thereon.
At any time after notice of redemption has been given, the
Company may deposit the aggregate redemption price in trust with
any Transfer Agent for the $2.65 Preferred Stock, named in such
notice, for payment on the date fixed for redemption to the
holders of the shares so to be redeemed, upon surrender of the
certificates for such shares. Upon such redemption date, all
dividends on the shares called for redemption shall cease to
accrue, and all rights of the holders thereof as stockholders of
the Company shall cease and terminate, except the right to receive
the redemption price from such Transfer Agent, without interest
thereon, and the shares represented thereby shall no longer be
deemed to be outstanding. In the event the holder of any such
shares of the $2.65 Preferred Stock shall not, within six years
after the redemption date, claim the amount deposited for the
redemption thereof, the depositary shall, upon demand, pay over
to the Company such unclaimed amount. Any moneys so deposited by
the Company which shall not be required for redemption because of
the exercise of any right of conversion or exchange subsequent to
the date of the deposit shall be repaid to the Company forthwith.
Any interest accrued on any funds deposited with the depositary
shall belong to the Company and shall be paid to it from time to
time on demand.
The Company may purchase from time to time, all or part of
the $2.65 Preferred Stock, except that after July 10, 1971, the
price at which such purchase may be effected shall not exceed the
then applicable redemption price; provided, however, that if the
Company shall be in default in the payment of any dividend on the
$2.65 Preferred Stock, it shall not purchase any shares of $2.65
Preferred Stock except pursuant to an offer made to each holder
thereof to purchase from him that number of shares which bears
the same proportion to the total number of shares registered in
the name of such holder as the number of shares of $2.65
Preferred Stock then outstanding, except that in determining the
number of shares to be purchased from each holder, fractions of
less than one-half share shall be disregarded and fractions of
more than one-half share shall be treated as one whole share.
3. Liquidation. The $2.65 Preferred Stock shall be
preferred over the Series Preferred Stock and Common Stock as
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herein provided as to both earnings and assets of the Company.
The amounts which the holders of the $2.65 Preferred Stock
shall be entitled to receive (in addition to accrued and unpaid
dividends) in the event of any voluntary liquidation,
dissolution, or winding up of the affairs of the Company, before
any distribution may be made to the holders of Series Preferred
Stock or Common Stock, shall be $67.00 per share until July 10,
1971 and thereafter the amounts specified in the preceding
paragraph 2 for redemption. The holders of the $2.65 Preferred
Stock shall be entitled to receive $66.00 per share (in addition
to accrued and unpaid dividends) in the event of an involuntary
liquidation, dissolution or winding up of the Company. In the
event that the assets of the Company available for distribution
to the holders of the $2.65 Preferred Stock shall not be
sufficient to make in full the payments herein required to be
made, such assets shall be distributed to the holders of the
$2.65 Preferred Stock in proportion to the amounts payable
hereunder with respect to each share thereof.
After payment or provisions for payment of the debts and
other liabilities of the Company and the preferential amounts due
the holders of the $2.65 Preferred Stock, the holders of Series
Preferred Stock and/or Common Stock shall be entitled to share,
in accordance with the terms of this Article IV and any
resolution adopted by the Board of Directors with respect to the
Series Preferred Stock, in the remaining assets of the Company to
the exclusion of the holders of the $2.65 Preferred Stock.
Neither the merger or consolidation of the Company into or
with another corporation nor the merger or consolidation of any
other corporation into or with the Company, nor the sale, lease
or conveyance of all or part of its assets, shall be deemed to be
a liquidation, dissolution or winding up of the Company within
the meaning of this paragraph 3.
4. Conversion. The $2.65 Preferred Stock shall be
convertible, at the option of the respective holders thereof,
into shares of Common Stock of the Company at a conversion rate
(subject to adjustment as hereinafter provided) of 1.66 shares of
Common Stock for each share of $2.65 Preferred Stock provided,
however, that as to any share of $2.65 Preferred Stock called for
redemption, the right of conversion shall terminate at the close
of business on the fifth day preceding the date fixed for
redemption.
Any holder of $2.65 Preferred Stock electing to convert
shall deposit the certificates representing the shares to be
converted at the office of any Transfer Agent for the $2.65
Preferred Stock, with the form of written request for conversion
duly endorsed on such certificates. The conversion right shall be
deemed to have been exercised at the date on which the
certificates for the $2.65 Preferred Stock, with the request for
conversion duly endorsed thereon, shall have been so deposited,
and the person entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes as the record
holder of such Common Stock on said date; provided, however, that
the conversion right in respect of any certificate so deposited
after the close of business on any day shall not be deemed to
have been exercised until the next succeeding business day. The
Company shall not be required, in connection with any such
conversion, to issue a fraction of a share of its Common Stock in
order to deliver a stock certificate representing a fraction
thereof, but in lieu thereof, the Company may make a cash payment
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equal to such fraction multiplied by the market price of the
Common Stock determined as hereafter set forth. The market price
of the Common Stock for the purpose of computing payment to be
made for fractional shares shall be the closing sales price (or
if there were no sales, the closing bid price) on the principal
stock exchange on which the Common Stock is listed or, if the
Common Stock is not so listed, the closing bid price on the New
York over-the-counter market; such price shall be determined as
of the close of business on the last full business day of each
week and such price so determined shall continue in effect during
the next succeeding week.
As soon as practicable after the date of conversion of any
$2.65 Preferred Stock into Common Stock, the Company shall
deliver to the person entitled thereto, at the office of the
Transfer Agent for the $2.65 Preferred Stock at which such $2.65
Preferred Stock shall have been presented for conversion,
certificates representing shares of Common Stock, and the cash,
if any, to which such person shall be entitled on such
conversion. The Company, as a condition to the exercise of any
right of conversion, may require the payment of a sum equal to
any transfer tax or other governmental charge (but not including
any tax payable upon the issue of stock deliverable upon such
conversion) that may be imposed or required by law upon any
transfer incidental or prior thereto, or the submission of proper
proof that the same has been paid.
The conversion rate at any time in effect hereunder shall be
adjusted in any of the following cases:
(i) In case the Company shall at any time issue any of
its Common Stock in subdivision of outstanding Common Stock,
by reclassification, or otherwise, the conversion rate then
in effect shall be increased proportionately, and in like
manner, in the case of any combination of Common Stock, by
reclassification or otherwise, the conversion rate then in
effect shall be proportionately decreased.
(ii) In case the Company shall pay a dividend or make a
distribution upon its Common Stock, in Common Stock, then in
each such case, from and after the record date for
determining the stockholders entitled to receive such
dividend or distribution, the conversion rate then in effect
shall be increased in proportion to the increase in the
number of outstanding shares of Common Stock through such
stock dividend or distribution.
(iii) No adjustment of the conversion rate shall be
made by reason of the issuance of Common Stock in exchange
for cash, property or services.
(iv) In case of any capital reorganization or any
reclassification of the capital stock of the Company or in
case of the consolidation or merger of the Company with or
into another corporation or the conveyance of all or
substantially all of the assets of the Company to another
corporation, each share of the $2.65 Preferred Stock shall
thereafter be convertible into the number of shares of stock
or other securities or property to which a holder of the
number of shares of Common Stock of the Company deliverable
upon conversion of such share of the $2.65 Preferred Stock
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would have been entitled upon such reorganization,
reclassification, consolidation, merger or conveyance; and,
in any such case, appropriate adjustment (as determined by
the Board of Directors) shall be made in the application of
the provisions herein set forth with respect to the rights
and interest thereafter of the holders of the $2.65
Preferred Stock, to the end that the provisions set forth
herein (including provisions with respect to adjustments of
the conversion rate) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any shares of
stock or other property thereafter deliverable upon the
conversion of the shares of the $2.65 Preferred Stock.
(v) No adjustment is to be made upon conversion of the
$2.65 Preferred Stock for accrued and unpaid dividends
thereon or for dividends upon the Common Stock issuable upon
such conversion.
Whenever the conversion rate is required to be adjusted as
provided herein, the Company shall forthwith compute the adjusted
conversion rate and shall prepare a certificate setting forth
such adjusted conversion rate and showing in detail the facts
upon which such adjustment is based. Such certificate shall
forthwith be filed with the Transfer Agent or Agents for the
$2.65 Preferred Stock and thereafter, until further adjusted, the
adjusted conversion rate shall be as set forth in said
certificate, provided that the computation of the adjusted
conversion rate shall be reviewed at least annually by the
independent public accountants regularly employed by the Company
and said accountants shall file a corrected certificate, if
required, with the Transfer Agent or Agents. The Company shall
cause the Transfer Agent or Agents for the $2.65 Preferred Stock
to mail to the holders thereof, at the time of each quarterly
dividend payment, a statement setting forth the adjustments, if
any, made in the conversion rate and not theretofore reported to
such holders, and the reasons for such adjustment.
In case at any time:
(i) the Company shall make any distribution (other than
cash dividends or dividends payable in shares of its Common
Stock) to the holders of its Common Stock; or
(ii) the Company shall offer for subscription pro rata
to the holders of its Common Stock any additional shares of
any class or any other rights; then, and in any one or more
of said cases, the Company shall cause at least 20 days'
prior notice to be mailed to the Transfer Agents for the
$2.65 Preferred Stock and for the Common Stock and to the
holders of record of the $2.65 Preferred Stock of the date
on which the books of the Company shall close, or a record
be taken for such distribution or subscription rights. Such
notice shall also specify the date as of which holders of
Common Stock of record shall participate in said
distribution or subscription rights.
So long as any shares of the $2.65 Preferred Stock remain
outstanding and the holders thereof have the right to convert
said shares, the Company will at all times reserve from its
authorized Common Stock a sufficient number of shares to provide
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for such conversions. As a condition precedent to the taking of
any action which would cause an adjustment reducing the
conversion price below the then par value of the shares of Common
Stock issuable upon conversion of the $2.65 Preferred Stock, the
Company will take such corporate action as may be necessary in
order that it may validly and legally issue fully paid and non-
assessable shares of such Common Stock at such adjusted
conversion price.
Any share of $2.65 Preferred Stock which shall have been
converted into Common Stock or acquired by the Company through
redemption shall be cancelled and not reissued.
5. Voting Rights. Each holder of $2.65 Preferred Stock
shall be entitled to one vote for each share held, and except as
otherwise provided herein or by law, the $2.65 Preferred Stock
and Common Stock (and any other capital stock of the Company at
the time entitled thereto) shall vote together as one class,
except that while holders of $2.65 Preferred Stock, voting as a
class, are entitled to elect two directors as hereinafter
provided, they shall not be entitled to participate with the
Common Stock (or any other capital stock as aforesaid) in the
election of any other directors.
If and whenever dividends on the $2.65 Preferred Stock shall
be in arrears and such arrears shall aggregate an amount at least
equal to six quarterly dividends upon such stock, then in such
event, the holders of the $2.65 Preferred Stock, voting
separately as a class, shall be entitled, at the next annual
meeting of the stockholders or at a special meeting held in place
thereof, or at a special meeting of the holders of the $2.65
Preferred Stock called as hereinafter provided, to elect two
directors. Whenever all arrears in dividends on the $2.65
Preferred Stock then outstanding shall have been paid and
dividends thereon for the current quarterly period shall have
been paid or declared and a sum sufficient for the payment
thereof set aside, then the right of the holders of the $2.65
Preferred Stock to elect such number of directors shall cease,
but subject always to the same provisions for the vesting of such
voting rights in the case of any similar future arrearages in
dividends.
At any time after such voting power shall have so vested in
the $2.65 Preferred Stock, the Secretary of the Company may, and
upon the written request of the holders of record of 20% or more
in amount of the $2.65 Preferred Stock then outstanding,
addressed to him at the principal office of the Company shall,
call a special meeting of the holders of the $2.65 Preferred
Stock for the election of the directors to be elected by them as
hereinafter provided, to be held within 30 days after such call
and at the place and upon the notice provided by law and in the
By-Laws for the holding of meetings of stockholders; provided,
however, that the Secretary shall not be required to call such
special meeting in the case of any such request received less
than 90 days before the date fixed for any annual meeting of
stockholders. If any such special meeting required to be called
as above provided shall not be called by the Secretary within 30
days after receipt of any such request, then the holders of
record of 20% or more in amount of the $2.65 Preferred Stock then
outstanding may designate in writing one of their number to call
such meeting, and the person so designated may call such meeting
to be held at the place and upon the notice above provided, and
for that purpose shall have access to the stock ledger of the
Company. The Company shall pay the reasonable expenses of calling
and holding any such special meeting. No such special meeting and
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no adjournment thereof shall be held on a date later than 30 days
before the annual meeting of the stockholders or a special
meeting held in place thereof next succeeding the time when the
holders of the $2.65 Preferred Stock become entitled to elect
directors as above provided.
If any such special meeting shall be called as above
provided and if the holders of at least 35% of the $2.65
Preferred Stock then outstanding shall be present or represented
by proxy at such meeting or any adjournment thereof, then, by
vote of the holders of at least a majority of the $2.65 Preferred
Stock present or so represented at such meeting, the then
authorized number of directors of the Company shall be increased
by two, and at such meeting, the holders of the $2.65 Preferred
Stock shall be entitled to elect the additional directors so
provided for, but any director so elected shall not hold office
beyond the annual meeting of the stockholders or special meeting
held in place thereof next succeeding the time when the holders
of the $2.65 Preferred Stock become entitled to elect directors
as above provided. Whenever the holders of the $2.65 Preferred
Stock shall be divested of special voting power as above
provided, the terms of office of all persons elected as directors
by the holders of the $2.65 Preferred Stock as a class shall
forthwith terminate, and the authorized number of directors of
the Company shall be reduced accordingly. Any director elected by
the $2.65 Preferred Stock may be removed by, and shall not be
removed except by, the vote of the holders of record of the
majority of the outstanding shares of $2.65 Preferred Stock,
voting separately as a class, at a meeting of the stockholders,
or of the holders of shares of $2.65 Preferred Stock, called for
the purpose. So long as a default in preferred dividends shall
exist (a) any vacancy in the office of a director elected by the
$2.65 Preferred Stock may be filled (except as provided in the
following clause (b)) by an instrument signed by the remaining
director elected by such class of stock and filed with the
Company, and (b) in the case of the removal of any such
directors, the vacancy may be filled by the vote of the holders
of a majority of the outstanding $2.65 Preferred Stock, voting
separately as a class, at the same meeting at which such removal
shall be voted.
6. Limitations. So long as any shares of $2.65 Preferred
Stock are outstanding the Company shall not, by amendment to its
Certificate of Incorporation or By-Laws or by merger or
consolidation or in any other manner:
(i) increase the authorized amount of $2.65 Preferred
Stock without the affirmative vote of the holders of at
least a majority of the $2.65 Preferred Stock then
outstanding; or
(ii) create any class of stock ranking on a parity with
or ranking prior to the $2.65 Preferred Stock either as to
dividends or distribution of assets in liquidation, or
change the preferences, powers, rights or limitations with
respect to the $2.65 Preferred Stock in any material respect
prejudicial to the holders thereof, without the affirmative
vote of the holders of at least two thirds of the $2.65
Preferred Stock at the time outstanding.
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Series Preferred Stock
Rights, Restrictions, etc. to be Determined by the Board of
Directors. The Series Preferred Stock may be issued, from time
to time, in one or more series as authorized by the Board of
Directors. Prior to issuance of a series, the Board of Directors
by resolution shall designate that series to distinguish it from
other series and classes of stock of the Company, shall specify
the number of shares to be included in the series, and shall fix
the terms, rights, restrictions and qualifications of the shares
of the series, including any preferences, voting powers, dividend
rights and redemption, sinking fund and conversion rights.
Subject to the express terms of any other series of Series
Preferred Stock outstanding at the time, the Board of Directors
may increase or decrease the number of shares or alter the
designation or classify or reclassify any unissued shares of a
particular series of Series Preferred Stock by fixing or altering
in any or more respects from time to time before issuing the
shares any terms, rights, restrictions and qualifications of the
shares.
Common Stock
1. Dividends. After the requirements with respect to
preferential dividends upon the $2.65 Preferred stock and Series
Preferred Stock, have been met, the holders of the Common Stock
shall be entitled to receive such dividends as may be declared
from time to time by the Board of Directors.
2. Voting Rights. Each holder of Common Stock shall be
entitled to one vote for each share held and, except as otherwise
provided herein or by law, the Common Stock and the $2.65
Preferred Stock (and any other capital stock of the Company at
the time entitled thereto) shall vote together as a class.
3. Regarding Pre-emptive Rights. No stockholder shall be
entitled as a matter of right to subscribe for, purchase or
receive any shares of the stock or any rights or options of the
Company which it may issue or sell whether out of the number of
shares now or hereafter authorized to be issued at any time or
out of the shares of the stock of the Company acquired by it
after the issuance thereof, nor shall any stockholder be entitled
as a matter of right to purchase or subscribe for or receive any
bonds, debentures or other obligations which the Company may
issue or sell that shall be convertible into or exchangeable for
stock or to which shall be attached or appertain any warrant or
warrants or other instrument or instruments that shall confer
upon the holder or owner of such obligation the right to
subscribe for or purchase from the Company any shares of its
stock. All such additional issues of stock, rights, options, or
of bonds, debentures or other obligations convertible into or
exchangeable for stock or to which warrants shall be attached or
appertain or which shall confer upon the holder the right to
subscribe for or purchase any shares of stock may (to the extent
permitted by law) be issued and disposed of by the Board of
Directors to such persons and upon such terms as in their
absolute discretion they may deem advisable.
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ARTICLE V
The minimum amount of capital with which the Company will
commence business is $1,000.
ARTICLE VI
The Company is to have perpetual existence.
ARTICLE VII
The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent
whatsoever.
ARTICLE VIII
1. The number of Directors of the Company shall be not less
than twelve or more than 18 persons. The exact number of
directors within the minimum and maximum limitations specified in
the preceding sentence shall be fixed from time to time by the
Board of Directors pursuant to a resolution adopted by a majority
of the entire Board of Directors. At the 1983 annual meeting of
stockholders, the directors shall be divided into three classes,
as nearly equal in number as possible, with the term of office of
the first class to expire at the 1984 annual meeting of
stockholders, the term of office of the second class to expire at
the 1985 annual meeting of stockholders and the term of office of
the third class to expire at the 1986 annual meeting of
stockholders. At each annual meeting of stockholders following
such initial classification and election, directors elected to
succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding annual meeting
of stockholders after their election.
2. Subject to the rights of the holders of any series of
preferred stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or
other cause shall be filled by a majority vote of the directors
then in office, although less than a quorum, and directors so
chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of the class to which
they have been elected expires. If the number of directors is
changed any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class
as nearly equal as possible. No decrease in the number of
directors constituting the Board of Directors shall shorten the
term of any incumbent director.
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3. Any director, or the entire Board of Directors may be
removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least 80% of the voting
power of all of the shares of the Company entitled to vote for
the election of directors.
4. Notwithstanding the foregoing, whenever the holders of
any class of stock (other than Common Stock) issued by the
Company shall have the right, voting as a class or otherwise, to
elect directors, the then authorized number of directors of the
Company shall be increased by the number of additional directors
to be elected.
5. In furtherance, and not in limitation of the powers
conferred by law, the Board of Directors are expressly
authorized:
(i) To make, alter, amend or repeal the By-Laws of the
Company and subject to Articles XV and XVI herein
stockholders of the Company shall have the power to alter,
amend or repeal By-Laws made by the Board of Directors.
(ii) To remove at any time any officer elected or
appointed by the Board of Directors by such vote of the
Board of Directors as may be provided for in the By-Laws.
Any other officer of the Company may be removed at any time
by a vote of the Board of Directors, or by any committee or
superior officer upon whom such power of removal may be
conferred by the By-Laws or by the vote of the Board of
Directors.
(iii) To determine whether any, and if any, what part,
of the annual net profits of the Company or of its net
assets in excess of its capital shall be declared in
dividends and paid to the stockholders, and to direct and
determine the use and disposition of any such annual net
profits or net assets in excess of capital.
(iv) To fix from time to time the amount of the profits
of the Company to be reserved as working capital or for any
other lawful purpose.
(v) To establish bonus, profit sharing, stock option,
retirement, or other types of incentive or compensation
plans for the employees (including directors and officers)
of the Company and to fix the amount of the profits to be
distributed or shared and to determine the persons to
participate in any such plans and the amounts of their
respective participations.
(vi) From time to time to determine whether and to what
extent, and at what time and places and under what
conditions and regulations the accounts and books of the
Company (other than the stock ledger), or any of them, shall
be open to the inspection of the stockholders; and no
stockholder shall have any right to inspect any account or
book or document of the Company, except as conferred by
statute or authorized by the Board of Directors or by a
resolution of the stockholders.
(vii) To authorize, and cause to be executed, mortgages
and liens upon the real and personal property of the
Company.
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ARTICLE IX
No contract or other transaction between the Company and any
other corporation and no other act of the Company with relation
to any other corporation shall, in the absence of fraud, in any
way be invalidated or otherwise affected by the fact that any one
or more of the directors of the Company are pecuniarily or
otherwise interested in, or are directors or officers of, such
other corporation. Any director of the Company individually, or
any firm or association of which any director may be a member,
may be party to, or may be pecuniarily or otherwise interested
in, any contract or transaction of the Company, provided that the
fact that he individually or as a member of such firm or
association is such a party or so interested shall be disclosed
or shall have been known to the Board of Directors or a majority
of such members thereof as shall be present at any meeting of the
Board of Directors at which action upon any such contract or
transaction shall be taken; and any director of the Company who
is also a director or officer of such other corporation or who is
such a party or so interested may be counted in determining the
existence of a quorum at any meeting of the Board of Directors
which shall authorize any such contract or transaction, and may
vote thereat to authorize any such contract or transaction, with
like force and effect as if he were not such director or officer
of such other corporation or not so interested. Any director of
the Company may vote upon any contract or other transaction
between the Company and any subsidiary or affiliated corporation
without regard to the fact that he is also a director of such
subsidiary or affiliated corporation.
Any contract, transaction or act of the Company or of the
directors, which shall be ratified at any annual meeting of the
stockholders of the Company, or at any special meeting called for
such purpose, shall, in so far as permitted by law or by the
Certificate of Incorporation of the Company, be as valid and as
binding as though ratified by every stockholder of the Company;
provided, however, that any failure of the stockholders to
approve or ratify any such contract, transaction or act, when and
if submitted, shall not be deemed in any way to invalidate the
same or deprive the Company, its directors, officers or
employees, of its or their right to proceed with such contract,
transaction or act.
ARTICLE X
Each officer, director, or member of any committee
designated by the Board of Directors shall, in the performance of
his duties, be fully protected in relying in good faith upon the
books of account or reports made to the Company by any of its
officials or by an independent public accountant or by an
appraiser selected with reasonable care by the Board of Directors
or by any such committee or in relying in good faith upon other
records of the Company.
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ARTICLE XI
(a) The Company shall indemnify and hold harmless, to the
fullest extent now or hereafter permitted by applicable law as
the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights
than said law permitted the Company to provide prior to such
amendment), each director or officer (including each former
director or officer) of the Company who was or is made a party to
or a witness in or is threatened to be made a party to or a
witness in, or is otherwise involved in, any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter referred to as a
'Proceeding'), by reason of the fact that such person is or was a
director, officer, employee, or agent of the Company or is or was
serving at the request of the Company as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans (hereinafter referred to as a
'Representative'), whether the basis of such Proceeding is
alleged action or failure to take action in an official capacity
as a Representative or in any other capacity while serving as a
Representative, against any and all expenses (including
attorneys' fees and disbursements), liabilities, (including
judgments, fines, excise taxes and penalties imposed under or in
connection with obligations under the Employee Retirement Income
Securities Act of 1974, as amended), amounts paid in settlement,
and amounts expended in seeking indemnification granted to such
person under applicable law, the By-Laws or any agreement with
the Company, actually and reasonably incurred by such persons in
connection with such Proceeding.
(b) The Company shall pay expenses (including attorneys'
fees and disbursements) incurred by a director or officer
(including each former director or officer) of the Company in
connection with the investigation, defense, settlement or appeal
of any Proceeding to which such person is a party to or a witness
in or is threatened to be made a party to or a witness in, or is
otherwise involved in, regarding such person's service as a
Representative in advance of the final disposition of such
Proceeding. The expenses incurred by such director or officer in
his capacity as a Representative of the Company shall be paid by
the Company in advance of the final disposition of such
Proceeding only upon receipt by the Company of an undertaking by
or on behalf of such person to repay all amounts advanced if it
shall be determined ultimately that such person is not entitled
to be indemnified under this Article XI or otherwise.
(c) The rights of indemnification and advancement of
expenses provided by this Article XI shall not be deemed
exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may have or hereafter
be entitled under any statute, provision of the Restated
Certificate of Incorporation or By-Laws of the Company,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person's official capacity
and as to action in another capacity while holding such office or
position, and shall continue as to a person who has ceased to be
a Representative of the Company and shall inure to the benefit of
the heirs, executors and administrators of such person. The
rights conferred in this Article XI shall be contract rights.
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(d) If any claim under this Article XI is not paid in full
by the Company within 30 days after a written claim has been
received by the Company, the claimant may at any time thereafter
bring suit against the Company to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad
faith, the claimant shall be entitled to be also paid the expense
of prosecuting such claims. It shall be a defense to any such
action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its
final disposition where the required undertaking, if any, has
been tendered to the Company) that the claimant has not met the
standards of conduct that make it permissible under applicable
law for the Company to indemnify the claimant for the amount
claimed, but the burden of providing such defense shall be on the
Company. Neither the failure of the Company (including the Board,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct
set forth in applicable law, nor an actual determination by the
Company (including the Board, independent legal counsel, or its
stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of
conduct.
(e) The Company may purchase and maintain insurance on
behalf of any Representative, employee or agent of the Company
against any liability asserted against or incurred by such person
in any capacity, whether or not the Company would have the power
to indemnify such person against such liability under the
provisions of this Article XI.
(f) The Board, without approval of the stockholders, shall
have the power to borrow money on behalf of the Company,
including the power to pledge the assets of the Company, from
time to time to discharge the Company's obligations with respect
to indemnification, the advancement and reimbursement of
expenses, and the purchase and maintenance of insurance referred
to in this Article XI.
(g) For purposes of this Article, references to the
'Company' shall include, in addition to the resulting
corporations, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its Representatives so that
any person who is or was a Representative of such constituent
corporation shall stand in the same position under this Article
XI with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
(h) The Board is authorized to enter into a contract with
any Representative, employee or agent of the Company providing
for indemnification rights equivalent to or, if the Board so
determines, greater than, those provided for in this Article XI.
(i) Any amendment, repeal or modification of any provision
of this Article XI by the stockholders or the directors of the
Company shall not adversely affect any right of protection of a
Representative of the Company under this Article XI existing at
the time of such amendment, repeal or modification.
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(j) The Company may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification
and to the advancement of expenses to any employee or agent of
the Company to the fullest extent of the provisions of this
Article with respect to the indemnification and advancement of
expenses of directors and officers of the Company.
(k) A director of the Company shall not be personally liable
to the Company 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 Company
or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of
law, (iii) for a stock repurchase which is illegal under Section
174 of the General Corporation Law of the State of Delaware or
(iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation
Law hereafter is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a
director of the Company, in addition to the limitation on
personal liability provided herein, shall be limited to the
fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this paragraph by
the stockholders of the Company shall be prospective only, and
shall not adversely affect any limitation on the personal
liability of a director of the Company existing at the time of
such repeal or modification.
ARTICLE XII
Both the stockholders and the directors of the Company may
hold their meetings and the Company may have an office or offices
in such place or places outside of the State of Delaware as the
By-Laws may provide and the Company may keep its books outside of
the State of Delaware except as otherwise provided by law.
ARTICLE XIII
Any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called
annual or special meeting of stockholders of the Company and may
not be effected by any consent in writing by such stockholders.
Special meetings of stockholders of the Company may be called
only by the Board of Directors pursuant to a resolution approved
by a majority of the entire Board of Directors.
ARTICLE XIV
(a) 1. In addition to any affirmative vote required by law,
and except as otherwise expressly provided in paragraph (b) of
this Article:
(A) any merger or consolidation of the Company or any
Subsidiary (as hereinafter defined) with or into (i) any
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Interested Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself an Interested
Stockholder) which, after such merger or consolidation,
would be an Affiliate (as hereinafter defined) of an
Interested Stockholder, or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of related transactions) to or with any Interested
Stockholder or any Affiliate of any Interested Stockholder
of any assets of the Company or any Subsidiary having an
aggregate fair market value of $1,000,000 or more, or
(C) the issuance or transfer by the Company or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Company or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities
or other property (or a combination thereof) having an
aggregate fair market value of $1,000,000 or more, or
(D) the adoption of any plan or proposal for the
liquidation or dissolution of the Company, or
(E) any reclassification of securities (including any
reverse stock split), or recapitalization of the Company or
any merger or consolidation of the Company with any of its
Subsidiaries or any similar transaction (whether or not with
or into or otherwise involving an Interested Stockholder)
which has the effect, directly or indirectly, of increasing
the proportionate share of the outstanding shares of any
class of equity or convertible securities of the Company or
any Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder,
shall require the affirmative vote of the holders of at least 80%
of the outstanding shares of stock of the Company entitled to
vote generally in the election of directors, considered for the
purpose of this Article as one class ('Voting Shares'). Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national
securities exchange or otherwise.
2. The term 'business combination' as used in this Article
shall mean any transaction which is referred to in any one or
more of clauses (A) through (E) of Section 1 of this paragraph
(a).
(b) The provisions of paragraph (a) of this Article shall
not be applicable to any particular business combination, and
such business combination shall require only such affirmative
vote as is required by law and any other provisions of this
Certificate of Incorporation, if either (1) such business
combination has been approved by a majority of the Continuing
Directors (as hereinafter defined) or (2) the aggregate amount of
the cash and fair market value of consideration other than cash
to be received per share by holders of Common Stock in such
business combination shall be in the same form and of the same
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kind as the consideration paid by the Interested Stockholder in
acquiring the initial 10% of the Common Stock owned by it and
shall be at least equal to the highest per share price (including
brokerage commission, transfer taxes and soliciting dealers' fees
and after giving effect to appropriate adjustments for any
recapitalizations and for any stock splits, stock dividends and
like distributions) paid by such Interested Stockholder for any
shares of Common Stock acquired by it prior to the business
combination; and the aggregate amount of cash to be received per
share by the holders of any class preferred stock in such
business combination is the greater of (i) the highest per share
price paid by the Interested Stockholder in acquiring any shares
of such preferred stock or (ii) the highest preferential amount
per share to which the holders of such class of preferred stock
are entitled in the event of a voluntary or involuntary
liquidation of the Company.
(c) For the purposes of this Article XIV:
1. A 'person' shall mean any individual, firm,
corporation or other entity.
2. 'Interested Stockholder' shall mean, in respect of any
business combination, any person (other than the Company or
any Subsidiary) who or which, as of the record date for the
determination of stockholders entitled to notice of and to
vote on such business combination, or immediately prior to
the consummation of any such transaction,
(A) is the beneficial owner, directly or indirectly,
of more than 10% of the Voting Shares, or
(B) is an Affiliate of the Company and at any time
within two years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding Voting Shares, or
(C) is an assignee of or has otherwise succeeded to
any shares of capital stock of the Company which were at
any time within two years prior thereto beneficially
owned by any Interested Stockholder, and such assignment
or succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
3. A person shall be the 'beneficial owner' of the Voting
Shares:
(A) which such person or any of its Affiliates and
Associates (as hereinafter defined) beneficially own,
directly or indirectly, or
(B) which such person or any of its Affiliates or
Associates has (i) the rights to acquire (whether such
right is exercisable immediately or only after the
passage of time), pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (ii) the rights to vote pursuant to any
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agreement, arrangement or understanding, or
(C) which are beneficially owned, directly or
indirectly, by any other person, with which such first
mentioned person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any
shares of capital stock of the Company.
4. The outstanding Voting Shares shall include shares
deemed owned through applications of Section 3 above but
shall not include any other Voting Shares which may be
issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise.
5. 'Affiliate' and 'Associate' shall have the
respective meanings given those terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on March 1, 1983.
6. 'Subsidiary' means any corporation of which a majority
of any class of equity security (as defined in Rule 3a11-1
of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on March 1, 1983) is
owned, directly or indirectly, by the Company, provided,
however, that for the purposes of the definition of
Interested Stockholder set forth in Section 2 of this
subparagraph c, the term 'Subsidiary' shall mean only a
corporation of which a majority of each class of equity
security is owned, directly or indirectly by the Company.
7. 'Continuing Director' means any member of the Board of
Directors of the Company who is unaffiliated with an
Interested Stockholder and was a member of the Board prior
to the time that an Interested Stockholder became an
Interested Stockholder, and any successor of a Continuing
Director who is unaffiliated with the Interested Stockholder
and is recommended to succeed a Continuing Director by a
majority of the Continuing Directors then on the Board.
(d) A majority of the directors shall have the power and
duty to determine for the purposes of this Article, on the basis
of information known to them, (1) the number of Voting Shares
beneficially owned by any person, (2) whether a person is an
Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the
matters referred to in Section 3 of paragraph (c), or (4) whether
the assets subject to any business combination or the
consideration received for the issuance or transfer of securities
by the Company or any Subsidiary has an aggregate fair market
value of $1,000,000 or more.
(e) Nothing contained in this Article shall be construed to
relieve any Interested Stockholder from any fiduciary obligation
imposed by law.
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ARTICLE XV
The provisions set forth in Article VIII, Article XIII,
Article XIV, Article XV and Article XVI herein may not be
repealed or amended in any respect, and the Company's By-Laws may
not be amended by stockholders, unless such action is approved by
the affirmative vote of the holders of not less than 80% of the
voting power of all shares of stock of the Company entitled to
vote in the election of directors, considered for purposes of
this Article XV as one class. The voting requirements contained
in Article VIII, Article XIII, Article XIV, Article XV, and
Article XVI herein shall be in addition to the voting
requirements imposed by law, other provisions of this Certificate
of Incorporation or any Certificate of Designation of Preferences
filed with respect to Series Preferred Stock. The By-Laws of the
Company may be altered, amended or repealed by the Board of
Directors at any regular or special meeting of the Board of
Directors.
ARTICLE XVI
The Company reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by the
laws of the State of Delaware and all rights conferred on
stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in
Article VIII, Article XIII, Article XIV, Article XV and Article
XVI, may not be repealed or amended in any respect unless such
repeal or amendment is approved as specified in Article XV
herein.
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EXHIBIT 3(ii)
WITCO CORPORATION
* * * * *
B Y - L A W S
* * * * *
Effective Date: April 27, 1994
<PAGE>
ARTICLE I
OFFICES
Section 1. The registered office of the corporation
shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. The corporation may also have offices at
such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the
election of directors or for any other lawful purpose shall be
held at such time and at such place as may be fixed from time to
time by the Board of Directors, either within or without the
State of Delaware. Such time and place shall be stated in the
notice of the meeting.
Section 2. Annual meetings of stockholders shall be
held on the fourth Wednesday in April, if not a legal holiday,
and if a legal holiday, then on the next business day following,
at 2:00 P.M., or at such other date and time as shall be
designated from time to time by the Board of Directors and stated
in the notice of the meeting. At such annual meetings, the
stockholders shall elect a Board of Directors, and shall transact
such other business as may properly be brought before the
meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of the meeting (or
any supplement thereto) given by or at the direction of the Board
of Directors, (ii) brought before the meeting by or at the
direction of the Board of Directors pursuant to a vote of not
less than a majority of the entire Board of Directors, or (iii)
otherwise properly brought before the meeting by a stockholder.
For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given written notice of
the proposed business, either by personal delivery or by United
States mail, either certified or registered, return receipt
requested, to the Secretary of the corporation, such that the
Secretary receives such notice at least ninety days prior to the
anniversary date of the immediately preceding annual meeting or
not later than ten days after notice or public disclosure of the
date of the annual meeting is given or made to stockholders,
whichever date is earlier. Any such notice shall set forth as to
each item of business the stockholder proposes to bring before
the annual meeting (i) a brief description of such item of
business and the reasons for conducting it at the meeting and, in
the event that such item of business includes a proposal to amend
either the certificate of incorporation of the corporation or
these by-laws, the language of the proposed amendment, (ii) the
name and address of the stockholder
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proposing such item of
business, (iii) a representation that the stockholder is a holder
of record of stock of the corporation entitled to vote at such
meeting having a market value of at least one thousand dollars
and intends to appear in person or by proxy at the meeting to
propose such item of business, and (iv) any material interest of
the stockholder in such item of business. Only business which
has been properly brought before an annual meeting of
stockholders in accordance with these by-laws shall be conducted
at such meeting, and the Chairman of such meeting may refuse to
permit any business to be brought before such meeting which has
not been properly brought before it in accordance with these by-
laws.
Section 3. Written notice of the annual meeting stating
the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than 10 nor
more than 60 days before the date of the meeting.
Section 4. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held or the office of the Secretary of
the corporation. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute
or by the certificate of incorporation, shall be called only by
the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors.
Section 6. Written notice of a special meeting stating
the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less
than 10 nor more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the
notice.
Section 8. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time,
without notice
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other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting
at which a quorum shall be present or represented any business
may be transacted which might have been transacted at the meeting
as originally notified. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 9. When a quorum is present at any meeting, the
vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one
upon which by express provision of applicable statute or of the
certificate of incorporation, a different vote is required, in
which case such express provision shall govern and control the
decision of such question.
Section 10. Unless otherwise provided in the
certificate of incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or
by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted or acted
upon after three years from its date, unless the proxy provides
for a longer period.
Section 11. Any action required or permitted to be
taken by the stockholders of the corporation must be effected at
a duly called annual or special meeting of stockholders, and may
not be effected by any consent in writing by such stockholders.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall
constitute the whole Board shall not be less than twelve (12),
nor more than eighteen (18). Within the limits so specified, the
number of directors shall be fixed from time to time by the Board
of Directors pursuant to a resolution adopted by a majority of
the entire Board of Directors. At the 1983 Annual Meeting of
Stockholders, the directors shall be divided into three classes,
as nearly equal in number as possible, with the term of office of
the first class to expire at the 1984 Annual Meeting of
Stockholders, the term of office of the second class to expire at
the 1985 Annual Meeting of Stockholders, and the term of office
of the third class to expire at the 1986 Annual Meeting of
Stockholders. At each annual meeting of stockholders following
such initial classification and election, directors elected to
succeed those directors whose term expired shall be elected for a
term of office to expire at the third succeeding annual meeting
of stockholders after their election.
Section 2. Newly created directorships resulting from
an increase in the authorized number of directors or any
vacancies in the Board of Directors shall be filled by a majority
of the
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directors then in office although less than a quorum, or
by a sole remaining director, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders
at which the term of the class to which they have been elected
expires. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as
possible. No decrease in the number of directors constituting the
Board shall shorten the term of any incumbent director. If there
are no directors in office, then an election of directors may be
held in the manner provided by statute.
Section 3. Nominations for the election of Directors
may be made by the Board of Directors or by any stockholder
entitled to vote for the election of Directors. Any such
stockholder may nominate a person or persons for election as a
director only if written notice of such stockholder's intention
to make such nomination or nominations is given in accordance
with the procedures set forth in Article II, Section 2 of these
by-laws. Each such notice shall set forth, in addition to any
information required to be set forth by Article II, Section 2,
(a) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of
stock of the corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the
stockholder and each person to be nominated and any other person
or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d)
such other information regarding each person to be nominated as
would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange
Commission had such person been nominated, or intended to be
nominated, by the Board of Directors; and (e) the consent of each
person to be nominated to serve as a director of the corporation
if elected at such meeting. The Chairman of any meeting of
stockholders, and the Board of Directors, may refuse to recognize
the nomination of any person not made in accordance with the
foregoing procedures.
Section 4. The business of the corporation shall be
managed by or under the direction of its Board of Directors which
may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the
certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The Board of Directors of the corporation
may hold meetings, both regular and special, either within or
without the State of Delaware.
Section 6. An annual meeting of the Board of Directors
shall be held immediately following the annual meeting of
stockholders, or at such other time and place as shall be
specified
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in a written notice signed by all of the directors, or
as shall be specified in a notice given pursuant to Article III,
Section 8 hereof.
Section 7. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as
shall from time to time be determined by the board.
Section 8. Special meetings of the board may be called
by the Chairman of the Board on not less than two days' notice to
each director, either personally or by mail or by facsimile;
special meetings shall be called by the Chairman of the Board or
Secretary in like manner and on like notice on the written
request of a majority of the entire Board of Directors. The
notice of meeting need not specify the purpose of the meeting.
Section 9. At all meetings of the board, a majority of
the directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present (and
not abstaining) at any meeting at which there is a quorum shall
be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 10. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a
meeting, if all members of the board or committee, as the case
may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board or
committee.
Section 11. Unless otherwise restricted by the
certificate of incorporation or these by-laws, members of the
Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of
Directors, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
COMMITTEES OF DIRECTORS
Section 12. The Board of Directors may, by resolution
passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the
directors of the corporation. The Board of Directors may
designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at
any meeting of the committee.
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In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any
such absent or disqualified member.
Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise
all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the
power or authority except to the extent that the enabling
resolution grants same, in reference to amending the certificate
of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease
or exchange of all or substantially all of the corporation's
property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution,
amending the by-laws of the corporation, declaring a dividend,
authorizing the issuance of stock, or adopting a certificate of
ownership and merger. Such committee or committees shall have
such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
Section 13. Each committee shall keep regular minutes
of its meetings, shall promptly file a transcript thereof with
the Secretary, and shall report the same to the Board of
Directors when required.
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the Board of
Directors shall have the authority to fix the compensation of
directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors and/or a stated annual sum as a director. No such
payment shall preclude any director from serving the corporation
in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of statute or
of the certificate of incorporation or of these by-laws, notice
is required to be given to any director or stockholder, it shall
not be construed to require personal notice, but such notice may
be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the
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corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when deposited in the United
States mail. Notice to directors may also be given by facsimile.
Section 2. Whenever any notice is required to be given
under the provisions of statute or of the certificate of
incorporation or of these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto. The attendance of a director at any meeting
shall constitute a waiver of notice of such meeting, except where
a director attends a meeting for the express purpose of objecting
to the transaction of any business because the meeting is not
lawfully called or convened.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be
chosen by the Board of Directors and shall be a Chairman of the
Board and a Secretary. The Board of Directors may also choose a
President, one or more Vice Chairmen, one or more Vice
Presidents, a Controller, a Treasurer, and one or more Assistant
Secretaries, Assistant Controllers and Assistant Treasurers. Any
number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws otherwise provide.
Section 2. The Board of Directors at its first meeting
after each annual meeting of stockholders shall choose a Chairman
of the Board and a Secretary.
Section 3. The Board of Directors may appoint such
other officers and agents as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined from time to time
by the board.
Section 4. The compensation of all officers of the
corporation shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any officer
elected or appointed by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the corporation
may be filled by the Board of Directors at such times as it sees
fit.
THE CHAIRMAN OF THE BOARD
Section 6. The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors.
The Chairman shall be the chief executive officer of
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the
corporation and as such shall have general supervision of the
affairs of the corporation and shall perform such other duties as
are prescribed by the corporation's by-laws or the Board of
Directors. He may sign, with the Secretary or any other proper
officer of the corporation thereunto authorized by the Board of
Directors, certificates for shares of stock of the corporation,
any deeds, mortgages, bonds, contracts, or other instruments
which the Board of Directors has authorized to be executed,
except in cases where the signing and execution thereof shall be
expressly otherwise designated by the Board of Directors or by
these by-laws, or shall be required by law to be otherwise signed
or executed.
THE SECRETARY
Section 7. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and
record all the proceedings of the meetings of the corporation and
of the Board of Directors in a book to be kept by him for that
purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or the Chairman of the
Board. He shall have custody of the corporate seal of the
corporation and he shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested
by his signature. The Board of Directors may give general
authority to any other officer to affix the seal of the
corporation and to attest the affixing by his signature.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by, or in the
name of the corporation by, the Chairman of the Board and the
Secretary of the corporation, certifying the number of shares of
stock owned by him in the corporation.
If the corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificates which the
corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in the
Delaware Corporation Law, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish
without charge to each stockholder who so requests the powers,
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designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he
were such officer, transfer agent or registrar at the date of
issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new
certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it
shall require and/or to give the corporation a bond in such sum
as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction
upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for any
other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than
ten days before the date of such meeting, or the date of the
action to be taken, and shall comply with
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the rules of any
national securities exchange on which any securities of the
corporation are listed at the time. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting, provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books
as the owner of shares of stock to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting, pursuant to law. Dividends may
be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for
dividends such sum or sums as the Board of Directors from time to
time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation, or
for such other purpose as the Board of Directors shall think
conducive to the interest of the corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in
which it was created.
CHECKS
Section 3. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from
time to time designate or authorize.
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FISCAL YEAR
Section 4. The fiscal year of the corporation shall be
the calendar year ending December 31 and may be changed by
resolution of the Board of Directors at any meeting.
SEAL
Section 5. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
INDEMNIFICATION
Section 6. (a) The corporation shall indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was an employee
or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit,
or proceeding if he 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 action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. In this connection, the termination of any action,
suit, or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was an employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he 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 except that no
indemnification shall be made in respect of any claim, issue, or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent
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that the
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication or liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that an employee or agent of the
corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to in
subsections (a) and (b), or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(d) Any indemnification under subsections (a) and
(b) (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of an employee or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b). Such determination
shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such
action, suit, or proceeding, or (2) if such a quorum is not
obtainable, by independent legal counsel in a written opinion, or
(3) by independent legal counsel in a written opinion if a
majority of a quorum consisting of directors who were not parties
to such action, suit, or proceeding so directs, or (4) by the
stockholders.
(e) Expenses (including attorney's fees) incurred
by an employee or agent in defending any civil, criminal,
administrative, or investigative action, suit or proceeding shall
be paid by the corporation in advance of the final disposition of
such action, suit, or proceeding upon receipt of an undertaking
by or on behalf of an employee or agent to repay such amount if
it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section.
Such expenses (including attorney's fees) incurred by other
employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of
expenses provided by or granted pursuant to the provisions of
this section shall not be deemed exclusive of any other rights to
which one seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
(g) The corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or
was an employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability
under the provisions of this section.
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(h) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VII
shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be an employee or agent
and shall inure to the benefit of the heirs, executors, and
administrators of such person.
ARTICLE VIII
Section 1. These by-laws may be altered, amended, or
repealed, or new by-laws may be adopted by the Board of Directors
at any regular or special meeting of the Board of Directors if
notice of such alteration, amendment, repeal, or adoption of new
by-laws is contained in the notice of such meeting. The by-laws
of the corporation may be altered, amended, or repealed, or new
by-laws may be adopted by the stockholders at any regular or
special meeting of the stockholders if notice of such alteration,
amendment, repeal, or adoption of new by-laws be contained in the
notice of such meeting, and if such alteration, amendment,
repeal, or adoption is approved by the affirmative vote of the
holders of not less than 80% of the voting power of all shares of
stock of the corporation entitled to vote in the election of
directors.
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EXHIBIT 11
WITCO CORPORATION AND SUBSIDIARY COMPANIES
COMPUTATION OF PER SHARE EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------
1994 1993
------- -------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C>
PRIMARY
Net Income -- as reported.............................................................. $22,041 $18,807
Interest on convertible subordinated debentures (net of tax)........................... 1,109 1,361
Dividend requirements of preferred stock............................................... (5) (6)
------- -------
Total............................................................................. $23,145 $20,162
------- -------
------- -------
Weighted average shares outstanding.................................................... 50,881 44,944
Assumed conversions:
Convertible subordinated debentures............................................... 5,133 5,500
Stock options..................................................................... 418 243
------- -------
Total........................................................................ 56,432 50,687
------- -------
------- -------
Per share amount....................................................................... $ .41 $ .40
------- -------
------- -------
FULLY DILUTED
Net Income -- as reported.............................................................. $22,041 $18,807
Interest on dilutive debentures (net of tax)........................................... 1,109 1,363
------- -------
Total............................................................................. $23,150 $20,170
------- -------
------- -------
Weighted average shares outstanding.................................................... 50,881 44,944
Assumed conversions:
Convertible subordinated debentures............................................... 5,133 5,522
Stock options..................................................................... 418 276
Preferred stock................................................................... 137 152
------- -------
Total........................................................................ 56,569 50,894
------- -------
------- -------
Per share amount............................................................. $ .41 $ .40
------- -------
------- -------
</TABLE>
<PAGE>
EXHIBIT 15
LETTER RE: UNAUDITED FINANCIAL INFORMATION
ACKNOWLEDGMENT LETTER
MAY 10, 1994
The Board of Directors
WITCO CORPORATION
We are aware of the incorporation by reference in the Registration
Statement (Form S-3, No. 33-45865) and the Post-effective Amendment No. 2 to the
Registration Statement (Form S-3, No. 33-58066), each pertaining to the issuance
of debentures, the Post-effective Amendment No. 1 to the Registration Statement
(Form S-3, No. 33-58120) pertaining to the issuance of common stock, the Post-
effective Amendment No. 2 to the Registration Statement (Form S-8, No.
33-10715), Post-effective Amendment No. 1 to the Registration Statements (Form
S-8, Nos. 33-30995 and 33-45194), each pertaining to stock option plans of Witco
Corporation and the Registration Statement (Form S-8, No. 33-48806), pertaining
to an employee benefit plan of Witco Corporation, of our report dated May 10,
1994 relating to the unaudited condensed consolidated interim financial
statements of Witco Corporation and Subsidiary Companies which are included in
its Form 10-Q for the quarter ended March 31, 1994.
Pursuant to Rule 436(c) of the Securities Act of 1993, our report is not
part of the registration statements prepared or certified by accountants within
the meaning of Sections 7 or 11 of the Securities Act of 1933.
ERNST & YOUNG
Stamford, Connecticut
