As filed with the Securities and Exchange Commission on June 30, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under The
Securities Act of 1933
-----------------
WITCO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-1870000
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One American Lane
Greenwich, Connecticut 06831-2559
(Address of Principal Executive Offices) (Zip Code)
-----------------
1995 Stock Option Plan for Employees of Witco Corporation
and its Subsidiaries (the "Plan")
(Full title of the plan)
-----------------
David G. Ormsby, Esq.
CRAVATH, SWAINE & MOORE
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(Name and address of agent for service)
212-474-1000
(Telephone number, including area code, of agent for service)
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Proposed Proposed
Amount of maximum maximum
shares offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered share price fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$5.00 per share 2,600,000 $ 31.9375(1) $ 83,037,500.00 $ 28,633.62
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee and
based on the average of the high and low prices of the Company's Common
Stock reported on the New York Stock Exchange on June 26, 1995.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
This Registration Statement incorporates herein by reference the
following documents which have been filed with the Securities and Exchange
Commission (the "Commission") by Witco Corporation as Registrant:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 (the "1994 Annual Report");
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ended March 31, 1995;
(c) The description of the Registrant's Common Stock, par value
$5.00 per share, contained in the Registrant's Registration
Statement on Form 10, filed pursuant to Section 12 of the
Exchange Act, that became effective on July 16, 1962; and
(d) The description of the Rights to Purchase Cumulative Preferred
Stock, contained in the Registrant's Registration Statement on
Form 8-A, dated March 3, 1995.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of the post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the General Corporation Law of
Delaware empowers a corporation to 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 a director, officer, 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
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
cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to 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 such
person acted in any of the capacities set forth above, 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
under similar standards, 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 for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite the
adjudication of liability such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
1
<PAGE>
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the 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; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the corporation may purchase and maintain insurance on behalf
of a director or officer of the corporation against any liability asserted
against him or 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 liabilities under Section 145.
The Restated Certificate of Incorporation of the Registrant, provides,
in effect, that, to the extent and under the circumstances permitted by
subsections (a) and (b) of Section 145 of the General Corporation Law of the
State of Delaware, the Company (i) shall indemnify any person who was or is a
party or is threatened to be made a party to any action, suit or proceeding
described in subsections (a) and (b) by reason of the fact that he is or was a
director or officer of the Registrant against expenses, judgments, fines and
amounts paid in settlement, and (ii) may indemnify any person who was or is a
party or is threatened to be made a party to any such action, suit or proceeding
if such person was an employee or agent of the Registrant and is or was serving
at the request of the Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following documents are filed as a part of this Registration
Statement:
Exhibit Description
------- -----------
4.1 1995 Stock Option Plan for Employees of Witco
Corporation and its Subsidiaries.
4.2 Form of Stock Option Agreement Under the 1995
Stock Option Plan for Employees of Witco Corporation
and its Subsidiaries.
4.3 Restated Certificate of Incorporation of the
Registrant (incorporated by reference to the
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994).
5 Opinion of Cravath, Swaine & Moore, as to the
legality of the securities to be registered.
15 Letter re: unaudited interim financial information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cravath, Swaine & Moore (included in
Exhibit 5).
24 Powers of Attorney (included on the signature
pages hereof).
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
2
<PAGE>
(i) To include any prospectus required by Section 10(a)(3)
of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
3
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints WILLIAM R. TOLLER, WILLIAM E. MAHONEY,
MICHAEL D. FULLWOOD or DUSTAN E. MCCOY acting severally, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments to such Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Greenwich, State of Connecticut, on June 30,
1995.
WITCO CORPORATION
By: /s/ WILLIAM R. TOLLER
-----------------------------
William R. Toller
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
PRINCIPAL EXECUTIVE OFFICERS:
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ WILLIAM R. TOLLER Chairman of the Board June 30, 1995
- --------------------------- and Chief Executive
William R. Toller Officer; Director
/s/ WILLIAM E. MAHONEY Vice Chairman and Chief June 30, 1995
- -------------------------- Operating Officer;
William E. Mahoney Director
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
/s/ MICHAEL D. FULLWOOD Executive Vice President and June 30, 1995
- --------------------------- Chief Financial Officer
Michael D. Fullwood
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
DIRECTORS:
/s/ WILLIAM J. ASHE Director June 30, 1995
- ---------------------------
William J. Ashe
/s/ SIMEON BRINBERG Director June 30, 1995
- ---------------------------
Simeon Brinberg
/s/ WILLIAM G. BURNS Director June 30, 1995
- ---------------------------
William G. Burns
/s/ WILLIAM R. GRANT Director June 30, 1995
- ---------------------------
William R. Grant
/s/ RICHARD M. HAYDEN Director June 30, 1995
- ---------------------------
Richard M. Hayden
/s/ HARRY G. HOHN Director June 30, 1995
- ---------------------------
Harry G. Hohn
/s/ WILLIAM E. MAHONEY Director June 30, 1995
- ---------------------------
William E. Mahoney
/s/ L. JOHN POLITE, JR. Director June 30, 1995
- ---------------------------
L. John Polite, Jr.
/s/ DAN J. SAMUEL Director June 30, 1995
- ---------------------------
Dan J. Samuel
/s/ WILLIAM R. TOLLER Director June 30, 1995
- ---------------------------
William R. Toller
/s/ BRUCE F. WESSON Director June 30, 1995
- ---------------------------
Bruce F. Wesson
/s/ WILLIAM WISHNICK Director June 30, 1995
- ---------------------------
William Wishnick
</TABLE>
5
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
4.1 1995 Stock Option Plan for Employees of Witco
Corporation and its Subsidiaries.
4.2 Form of Stock Option Agreement Under the 1995
Stock Option Plan for Employees of Witco Corporation
and its Subsidiaries.
4.3 Restated Certificate of Incorporation of the
Registrant (incorporated by reference to the
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994).
5 Opinion of Cravath, Swaine & Moore, as to the
legality of the securities to be registered.
15 Letter re: unaudited interim financial information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cravath, Swaine & Moore (included in
Exhibit 5).
24 Powers of Attorney (included on the signature
pages hereof).
EXHIBIT 4.1
1995 Stock Option Plan for Employees
of
Witco Corporation and its Subsidiaries
Section 1. ESTABLISHMENT.
Witco Corporation hereby establishes the 1995 Stock Option Plan for
Employees of Witco Corporation and its Subsidiaries.
Section 2. PURPOSE.
The purpose of the Plan is to: (a) create a strong and clear link
between rewards for key employees of the Company and its subsidiaries and the
creation of value for the Company's shareholders; (b) attract and retain the
highest caliber employees for key positions by insuring that the Company's total
compensation opportunities are fully comparable to opportunity levels among
competing employers; and (c) promote a stakeholder orientation among employees
in key positions by providing a meaningful opportunity to own shares of the
Company.
Section 3. DEFINITIONS.
(a) Affiliate means (a) any corporation that is a member of the
"controlled group of corporations" that includes the Company, determined in
accordance with the Code Section 1563(a) without regard to Code Sections
1563(a)(4) and (e)(3)(C), and (b) any organization that is part of a group of
trades or businesses under common control pursuant to Code Section 414(b) that
includes the Company.
(b) Board of Directors shall mean the Board of Directors of the
Company.
(c) Change in Control shall be deemed to have occurred if:
(i) any "person", as such term is used in Sections 3(a)(9) and
13(d)(3) of the Exchange Act, other than an Affiliate or any employee
benefit plan sponsored by the Company or an Affiliate becomes a
"beneficial owner", as such term is used in Rule 13d-3 promulgated
under the Exchange Act, of 20% or more of the "Voting Stock" (which
means the capital stock of any class or classes of the Company having
general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of such corporation) of the
Company;
(ii) 33 1/3% of the Board of Directors consists of individuals
other than the members of the Board of Directors on January 1, 1994
(the "Incumbent Directors"); provided, however, that any person
becoming a director subsequent to such date whose election or
nomination for election was approved by two-thirds (but in no event
less than two) of the directors who at the time of such election or
nomination comprise the Incumbent Directors shall, for purposes of this
Plan, be considered an Incumbent Director;
<PAGE>
(iii) the Company adopts any plan of liquidation providing for
the distribution of all or substantially all of its assets;
(iv) the Company combines with another company (whether or not the
Company is the surviving corporation) and immediately after the
combination, the shareholders of the Company immediately prior to the
combination (other than shareholders who, immediately prior to the
combination, were "affiliates" of such other company, as such term is
defined in the rules of the Securities and Exchange Commission) do not
beneficially own, directly or indirectly, more than 20% of the Voting
Stock of the combined company; or
(v) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, the assets of the Company occurs.
(d) Code shall mean the Internal Revenue Code of 1986, together with
any applicable amendments. References to Sections of the Code shall refer to any
corresponding provisions of subsequent legislation.
(e) Committee shall mean the Organization and Compensation Committee of
the Board of Directors composed and acting as described in Section 4.
(f) Company shall mean Witco Corporation, a Delaware corporation.
(g) Date of Exercise shall mean the date on which both the payment of
the Option Price and written request for the Shares to be purchased are received
by the Secretary of the Company.
(h) Date of Grant shall mean the date the Option is granted pursuant to
the provisions of Section 13.
(i) Effective Date shall have the meaning set forth in Section 12.
(j) Exchange Act shall mean the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(k) Fair Market Value shall mean the closing price of the Shares on the
New York Stock Exchange-Composite Transactions Tape on the applicable valuation
date or, if no trade of the Shares shall have been made on that day, the next
preceding day on which there was a trade of the Shares.
(l) Incentive Stock Option shall mean an Option meeting the
requirements of Section 422 of the Code.
(m) Nonqualified Stock Option shall mean all Options which are not
Incentive Stock Options.
(n) Option or Options shall mean the Option or Options to purchase
Shares granted pursuant to the provisions of this Plan and evidenced in the
Optionee's Stock Option Agreement.
2
<PAGE>
(o) Optionee shall mean the officer or other key employee to whom an
Option is granted.
(p) Option Price shall mean the price per Share which the Optionee must
pay to purchase Shares pursuant to an Option, as determined under the Plan and
set forth in the Optionee's Stock Option Agreement.
(q) Plan shall mean the 1995 Stock Option Plan for Employees of Witco
Corporation and its Subsidiaries, as presently adopted and as amended from time
to time.
(r) Shares shall mean shares of the common stock of the Company ($5.00
par value), or in the event that the outstanding shares of the common stock of
the Company are hereafter changed into or exchanged for shares of a different
stock or securities of the Company or some other corporation, then such other
stock or securities.
(s) Stock Option Agreement, which is dated as of the Date of Grant,
shall mean the agreement between the Company and the Optionee under which the
Optionee may purchase Shares pursuant to the Plan.
(t) Subsidiaries or Subsidiary shall mean all Subsidiaries or any
Subsidiary as such term is defined in Section 424(f) of the Code.
Section 4. ADMINISTRATION.
The Plan shall be administered by the Committee, which shall consist of
three or more persons who shall be members of the Board of Directors and who
shall be disinterested persons as defined from time to time in Rule 16b-3
promulgated by the Securities and Exchange Commission pursuant to the Exchange
Act. The Committee shall be appointed by the Board of Directors, which may from
time to time appoint members of the Committee in substitution for members
previously appointed and may fill vacancies, however caused, in the Committee.
The Committee will, in its discretion, determine (subject to the terms
of the Plan) the officers and other key employees to be granted Options, the
time or times at which Options shall be granted, and the number of Shares
subject to each Option, whether the Options are Incentive Stock Options or
Nonqualified Stock Options, and the manner in which Options may be exercised. In
making such determination, the Committee may take into consideration the value
of the services rendered by the respective individuals, their present and
potential contributions to the success of the Company and its Subsidiaries and
such other factors which the Committee may deem relevant in accomplishing the
purpose of the Plan.
The Committee shall hold its meetings at such times and places as it
may determine. A majority of the Committee shall constitute a quorum and the
acts of a majority of the members present at any meeting at which a quorum is
present, or acts approved in writing by a majority of the Committee, shall be
deemed the acts of the Committee. The Company shall grant Options under the Plan
in accordance with determinations made by the Committee pursuant to the
provisions of the Plan. The Committee from time to time may adopt (and
thereafter amend and rescind) such rules and provisions for carrying out the
Plan and take such action in the administration of the Plan, not inconsistent
with the provisions hereof, as it shall deem proper. The interpretation and
3
<PAGE>
construction of any provisions of the Plan by the Committee shall, unless
otherwise determined by the Board of Directors, be final and conclusive. No
member of the Board of Directors or the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Option
granted thereunder.
Section 5. OPTION SHARES.
The maximum number of Shares which may be issued upon exercise of
Options under the Plan shall not exceed 2,600,000 Shares (subject to adjustment
as provided in Section 10). Notwithstanding any other provision in the Plan, no
person shall be granted Options for more than 1,300,000 shares (subject to
adjustment as provided in Section 10) during the term of this Plan. The Shares
issued under the Plan may be either issued Shares reacquired by the Company at
any time and held in its Treasury or authorized but unissued Shares, as the
Board of Directors from time to time may determine.
In the event that any outstanding Options under the Plan for any reason
expire or are terminated, the Shares allocable to the unexercised portion of all
of such Options shall again be available for the future grant of an Option or
Options under the Plan.
Section 6. ELIGIBILITY.
Options will be granted only to persons who are key employees of the
Company or its Subsidiaries. The term "employees" shall include officers as well
as other key employees of the Company or any Subsidiary and shall include
directors who are also employees of the Company or any Subsidiary.
No Incentive Stock Option may be granted to any individual who, on the
Date of Grant, owns (within the meaning of Section 422(b)(6) of the Code)
directly or indirectly stock of the Company possessing more than ten percent
(10%) of the total combined voting power or value of all classes of stock of the
Company or any Subsidiary. For purposes of the preceding sentence, direct or
indirect ownership shall be determined in accordance with the attribution rules
of Section 424(d) of the Code.
An individual may be granted more than one Option but only on the terms
and subject to the restrictions hereinafter set forth. No person shall be
eligible to receive an Option for a larger number of Shares than is recommended
for such individual by the Committee.
Section 7. LIMITATION APPLICABLE ONLY TO INCENTIVE STOCK OPTIONS.
To the extent that the aggregate Fair Market Value of the Shares
determined as of the Date of Grant with respect to which Incentive Stock Options
(determined without regard to this sentence) are granted to an Optionee after
1986 and are exercisable for the first time by an Optionee in any calendar year
(under all plans of the Company and its Subsidiaries) exceeds $100,000 (or such
other maximum amount which may hereafter be specified under Section 422 of the
Code), such Options shall be treated as Options which are not Incentive Stock
Options by taking such Options into account in the order in which granted.
4
<PAGE>
Section 8. TERMS AND CONDITIONS OF OPTIONS.
Each Option granted under the Plan shall be evidenced by a Stock Option
Agreement containing such terms and conditions, not inconsistent with the Plan,
as the Committee shall determine, provided that such Stock Option Agreement
shall clearly and separately identify Nonqualified Stock Options and Incentive
Stock Options and that the substance of the following terms and conditions shall
be included therein:
(a) Option Price. The Option Price at which each Share covered by such
Option may be purchased shall be determined by the Committee and shall be no
less than 100 percent (100%) of the Fair Market Value of the Shares on the Date
of Grant.
(b) Nontransferable. The Option shall not be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution and
may be exercised, during the Optionee's lifetime, only by the Optionee.
(c) Exercise After Termination of Employment. Except as provided
hereafter in this paragraph (c), only those Options exercisable as of the date
of the Optionee's termination of employment (determined after application of
paragraph (g) hereof) may be exercised, and such Options shall be exercisable
during the ninety (90) day period following such termination, provided that in
no event shall Options be exercisable after the expiration of ten (10) years
from the Date of Grant or such earlier date as may be specified hereunder.
Options granted under the Plan shall not be affected by any change of duties or
position so long as the Optionee continues to be an employee of the Company or
any Subsidiary. Notwithstanding the foregoing provisions of this paragraph (c),
upon termination of employment by (i) early retirement or normal retirement by
an Optionee, each as determined pursuant to the Witco Corporation Retirement
Plan, (ii) death or (iii) disability as determined pursuant to the Witco
Corporation Long Term Disability Plan, any Option which would otherwise not then
be exercisable shall become immediately exercisable and such Options shall be
exercisable during the three (3) year period following such termination;
provided, however, that except in the case of the death of the Optionee, the
exercise of any Incentive Stock Option shall qualify for Incentive Stock Option
treatment only if the Optionee has been an employee of the Company or any
Subsidiary at all times during the period beginning with the Date of Grant and
ending on the day three (3) months (or one (1) year in the case of an Optionee
permanently and totally disabled as defined in Section 22(e)(3) of the Code)
before the Date of Exercise of such Option. In the event of any question
regarding the meaning of the terms "termination", "early retirement", "normal
retirement" or "disability" the determination of the Committee shall be final
and binding. If any Optionee who has terminated employment for a reason other
than death shall die holding an Option that is not fully exercised, such Option
may be exercised, to the extent it could have been exercised by the decedent, at
any time within the greater of one year after such date of death or the
remainder of the period in which the Optionee could have exercised the Option
had he or she not died, but in no event beyond the original term of the Option.
(d) Term of Option. No Option shall be exercisable prior to six (6)
months after the Date of Grant or the date of shareholder approval of the Plan,
whichever is later, or after (i) the expiration of ten (10) years from the Date
of Grant or (ii) such earlier date as may be specified hereunder.
5
<PAGE>
(e) Death of Optionee. In the event of the death of an Optionee, any
Option theretofore granted to such person which is then exercisable as provided
in paragraph (c) shall be exercisable only by the executor or administrator of
the Optionee's estate or by the person or persons to whom the Optionee's rights
under the Option shall pass by the Optionee's will or the laws of descent and
distribution.
(f) No Right to Continuance of Employment. Nothing contained in the
Plan or in any Stock Option Agreement shall confer upon any Optionee any right
of continuance of employment by the Company or its Subsidiaries, nor interfere
in any way with the right of the Company or any of its Subsidiaries to terminate
the Optionee's employment or change the Optionee's compensation at any time.
(g) Dismissal for Cause. In the event that any Optionee shall be
dismissed from the employ of the Company or any of its Subsidiaries for any
reason which the Committee determines to constitute good cause for dismissal,
the Company shall notify such Optionee of such determination and any Option
still held by such person at such time shall be canceled effective as of the
date of such Optionee's termination of employment. The decision of the Committee
as to what shall constitute good cause for dismissal shall be final and binding
upon all concerned.
Section 9. EXERCISE OF OPTIONS - PURCHASE OF SHARES.
Unless otherwise determined by the Committee (subject to Section 8(d)
hereof), twenty percent (20%) of the total number of Shares subject to an Option
shall become exercisable one year from Date of Grant and twenty percent (20%) on
each of the four succeeding anniversaries, subject to the limitations imposed on
exercise in the Stock Option Agreement. An Optionee's right to purchase Shares
with respect to an Option which becomes exercisable in installments shall be
cumulative during the term of the Option. An Option shall be exercised by
payment to the Company of the Option Price accompanied by a written request
specifying the number of Shares with respect to which such Option is exercised
on the Date of Exercise. However, the Company shall not be required to issue or
deliver any certificates for Shares purchased upon the exercise of an Option
prior to the completion of any registration or other qualification of such
shares under any state or federal law or rulings or regulations of any
government regulatory body, which the Company shall determine to be necessary or
advisable.
Payment of the Option Price shall be in cash, or such other
consideration as the Committee shall determine in its sole discretion, to be
substantially equivalent to cash (including cashless exercise procedures), or by
surrender of stock certificates representing like common stock of the Company
having an aggregate Fair Market Value, determined as of the Date of Exercise,
equal to the number of Shares with respect to which such Option is exercised
multiplied by the Option Price per share; provided that the Committee may impose
whatever restrictions it deems necessary or desirable with respect to the
payment for Shares by the surrender of stock certificates representing like
common stock of the Company.
No Optionee or Optionee's executor or administrator, legatees or
distributees, as the case may be, will be, or will be deemed to be, a holder of
any Shares subject to an Option unless and until a stock certificate or
certificates for such Shares are issued to such person or persons under the
terms of the Plan and Stock Option Agreement. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as provided in Section 10.
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Section 10. CHANGE IN STOCK, ADJUSTMENTS, ETC.
In the event that the outstanding Shares are hereafter increased or
decreased or changed into, or exchanged for, a different number of shares or
kind of shares or other securities of the Company or another corporation, by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of Shares, or a dividend payable
in capital stock, appropriate adjustment shall be made by the Committee in the
number and the kind of Shares for purchase of which Options may be granted under
the Plan, including the maximum number that may be granted to any one person. In
addition, the Committee shall make appropriate adjustments in the number and in
the kind of Shares as to which outstanding Options, or portions thereof then
unexercised, shall be exercisable, to the end that the Optionee's proportionate
interest shall be maintained as before the occurrence of such event, and such
adjustment of outstanding Options shall be made without change of the total
Option Price applicable to the unexercised portion of the Option and with a
corresponding adjustment in the Option Price per share; provided, however, that
each such adjustment in the number and kind of Shares subject to the outstanding
Options, including any adjustments in the Option Price, shall be made in such
manner as not to constitute a modification as defined in Section 424(h) of the
Code. Any such adjustment made by the Committee shall be conclusive.
The grant of an Option pursuant to the Plan shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes in its capital or business structure or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
Section 11. DURATION, AMENDMENT AND TERMINATION.
The Board of Directors may at any time terminate the Plan or make such
amendments thereof as it shall deem advisable and in the best interest of the
Company, without further action on the part of the shareholders of the Company;
provided, however, that no such termination or amendment shall, without the
consent of the individual to whom any Option shall theretofore have been
granted, affect or impair the rights of such individual under such Option, and
provided further, that unless the shareholders of the Company shall have first
approved thereof, no amendment of the Plan shall be effective for which
shareholder approval is required in order to satisfy the requirements of Rule
16b-3 under Section 16(b) of the Exchange Act, the Code, the New York Stock
Exchange, or any other applicable laws.
It is intended that the Plan be applied and administered in compliance
with Rule 16b-3. If any provision of the Plan would be in violation of Rule
16b-3 if applied as written, such provision shall not have effect as written and
shall be given effect so as to comply with Rule 16b-3, as determined by the
Committee. The Board of Directors is authorized to amend the plan and to make
any such modifications to Stock Option Agreements to comply with Rule 16b-3, as
it may be amended from time to time, and to make any other such amendments or
modifications as it deems necessary or appropriate to better the purposes of the
Plan in light of any amendments made to Rule 16b-3.
No Option shall be granted under the Plan after March 1, 2005, but
Options granted prior to or as of such date may extend beyond such date in
accordance with the provisions hereof.
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Section 12. EFFECTIVE DATE OF THE PLAN.
The Plan shall be effective on the date approved by the Board of
Directors (the "Effective Date"), subject to the approval of the Plan within
twelve (12) months of its Effective Date by the shareholders of the Company.
After the Effective Date, the Options may be granted as provided herein subject
to such subsequent shareholder approval.
Section 13. DATE OF GRANT.
The Date of Grant of an Option pursuant to the Plan shall be the date
the Committee's decision that an Option shall be granted becomes final or such
later date as specified by the Committee. The Company shall submit to the
Optionee a Stock Option Agreement duly executed by and on behalf of the Company,
with the request that the Optionee execute such Agreement and return it to the
Secretary of the Company within thirty (30) days after it is mailed by the
Company to the Optionee.
Section 14. NO OBLIGATION TO EXERCISE OPTION.
Granting of an Option shall impose no obligation on the Optionee to
exercise such Option.
Section 15. WITHHOLDING TAXES.
The Company's obligations to deliver Shares upon the exercise of any
Option shall be subject to applicable federal, state and local tax withholding
requirements. Accordingly, the Company may either (i) reduce the number of
Shares otherwise issuable, subject to such limitations as may be imposed by Rule
16b-3 under Section 16(b) of the Exchange Act, or (ii) require reimbursement
from the holder equal to the withholding applicable under federal, state and
local income tax laws and regulations.
Section 16. EFFECT OF CHANGE IN CONTROL OR TENDER OFFER.
(a) Each Stock Option Agreement entered into pursuant to the Plan shall
provide that Options granted under the Plan shall be exercisable in full for a
period of thirty (30) days following the date of a Change in Control of the
Company.
(b) A tender offer or exchange offer for shares which results in a
Change in Control shall be deemed to constitute a Tender Offer.
(c) All Options outstanding at the end of the thirty (30) day period in
subsection (a) hereof shall be surrendered to the Secretary of the Company for
cancellation in exchange for a settlement payment. The amount paid in settlement
for the surrender and cancellation of each Option shall be the higher of:
(i) the excess of the Fair Market Value of the Shares subject to
the Option (regardless of exercisability) at the end of the period
specified in subsection (a) hereof over the Option Price; or
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(ii) the excess of the "Offer Price per Share" (as hereinafter
defined), if any, of the Shares subject to the Option (regardless of
exercisability) over the Option Price.
As used in subparagraph (ii) above, the term "Offer Price per Share"
shall mean the highest price per Share payable in any Tender Offer which was in
effect at any time during the period beginning sixty (60) days prior to the date
on which such Option was surrendered. Any securities or other property which are
part of the consideration paid for Shares in a Tender Offer shall be valued in
determining the Offer Price per Share at the valuation placed on such securities
or property by the corporation, person or other entity making the Tender Offer.
(d) The Committee at any time may exempt from the operation of
subsections (a) and (c) hereof any outstanding Option selected by the Committee
or may exempt all outstanding Options. No exemption shall, however, be effective
after payment or delivery of Shares has been made in settlement of a surrendered
Option.
(e) The Committee shall have sole discretion to determine whether
settlement payments shall be made wholly in cash, wholly in Shares or by a
combination of cash and Shares. In the event no action is taken by the Committee
to determine the method of payment, the amount due shall be paid in cash.
(f) To the extent that the exercise of an Option during the thirty (30)
day period referred to in subsection (a) above or the surrender of an Option as
provided for in subsection (c) above would result in liability under Section
16(b) of the Exchange Act to an Optionee, the Committee shall exempt from the
operation of subsections (a) and (c) hereof any such Options, pursuant to
subsection (d) above, until such time that the exercise of such Option would not
result in liability under Section 16(b) of the Exchange Act.
Section 17. OTHER TERMS.
Stock Option Agreements evidencing Options may contain such other
provisions, not inconsistent with the Plan, as the Committee deems advisable.
9
EXHIBIT 4.2
STOCK OPTION AGREEMENT
UNDER THE 1995
STOCK OPTION PLAN FOR EMPLOYEES
OF
WITCO CORPORATION AND ITS SUBSIDIARIES
1. Grant of Option. Pursuant to the action of the Organization and
Compensation Committee, Witco Corporation, hereby grants to _________________
("Optionee") on ___________________ ("Date of Grant") the Option or Options
listed below:
(a) An Incentive Stock Option to purchase _________________ Shares at
a purchase price of $ ________________ per Share ("Option Price").
(b) A Nonqualified Stock Option to purchase Shares______________
at a purchase price of $____________ per Share ("Option Price").
The Option or Options are granted pursuant to the Plan which is incorporated by
reference herein, and are subject to the provisions of this Agreement and of the
Plan.
2. Definitions:
(a) Affiliate means (a) any corporation that is a member of the
"controlled group of corporations" that includes the Company, determined in
accordance with the Code Section 1563(a) without regard to Code Sections
1563(a)(4) and (e)(3)(C), and (b) any organization that is part of a group
of trades or businesses under common control pursuant to Code Section
414(b) that includes the Company.
(b) Agreement shall mean this Stock Option Agreement.
(c) Board of Directors shall mean the Board of Directors of the
Company.
(d) Change in Control shall be deemed to have occurred if:
(i) any "person", as such term is used in Sections 3(a)(9) and
13(d)(3) of the Exchange Act, other than an Affiliate or any employee
benefit plan sponsored by the Company or an Affiliate becomes a
"beneficial owner", as such term is used in Rule 13d-3 promulgated
under the Exchange Act, of 20% or more of the "Voting Stock" (which
means the capital stock of any class or classes of the Company having
general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of such corporation) of the
Company;
<PAGE>
(ii) 33 1/3% of the Board of Directors consists of individuals
other than the members of the Board of Directors on January 1, 1994
(the "Incumbent Directors"); provided, however, that any person
becoming a director subsequent to such date whose election or
nomination for election was approved by two-thirds (but in no event
less than two) of the directors who at the time of such election or
nomination comprise the Incumbent Directors shall, for purposes of
this Plan, be considered an Incumbent Director:
(iii) the Company adopts any plan of liquidation providing for
the distribution of all or substantially all of its assets;
(iv) the Company combines with another company (whether or not
the Company is the surviving corporation) and immediately after the
combination, the shareholders of the Company immediately prior to the
combination (other than shareholders who, immediately prior to the
combination, were "affiliates" of such other company, as such term is
defined in the rules of the Securities and Exchange Commission) do not
beneficially own, directly or indirectly, more than 20% of the Voting
Stock of the combined company; or
(v) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, the assets of the Company occurs.
(e) Code shall mean the Internal Revenue Code of 1986, together with
any applicable amendments. References to Sections of the Code shall refer
to any corresponding provisions of subsequent legislation.
(f) Committee shall mean the Organization and Compensation Committee
of the Board of Directors composed and acting as described in the Plan.
(g) Company shall mean Witco Corporation, a Delaware corporation.
(h) Date of Exercise shall mean the date on which both the payment of
the Option Price and written request made pursuant to Section 5(b) for the
Shares to be purchased are received by the Secretary of the Company.
(i) Date of Grant shall be the Date of Grant set forth in Section 1.
(j) Exchange Act shall mean the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(k) Fair Market Value shall mean the closing price of the Shares on
the New York Stock Exchange - Composite Transactions Tape on the applicable
valuation date or, if no trade of the Shares shall have been made on that
day, the next preceding day on which there was a trade of the Shares.
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(l) Incentive Stock Option shall mean the Option designated in Section
1(a) which meets the requirements of Section 422 of the Code.
(m) Nonqualified Stock Option shall mean the Option designated in
Section 1(b) which is not an Incentive Stock Option.
(n) Option or Options shall mean the Option or Options to purchase
Shares granted pursuant to the provisions of the Plan and evidenced in this
Agreement, whether an Incentive Stock Option or a Nonqualified Stock
Option.
(o) Optionee shall mean the individual named in Section 1.
(p) Option Price shall mean the price per Share which is set forth in
Section 1.
(q) Plan shall mean the 1995 Stock Option Plan for Employees of Witco
Corporation and its Subsidiaries, as presently adopted and as amended from
time to time.
(r) Shares shall mean shares of the common stock of the Company ($5.00
par value) or in the event that the outstanding shares of the common stock
in the Company are hereafter changed into or exchanged for shares of a
different stock or securities of the Company or some other corporation,
then such other stock or securities.
(s) Subsidiary or Subsidiaries shall mean any Subsidiary or all
Subsidiaries as such term is defined in Section 424(f) of the Code.
(t) Termination Date shall mean ________________.
3. Acceptance of Option Required. The Optionee must execute this Stock
Option Agreement and return it to the Secretary of the Company by the date
specified in the letter transmitting this Agreement or the Option or Options
evidenced by this Agreement may be terminated at the discretion of the
Committee.
The Plan requires that:
(a) To the extent that the aggregate Fair Market Value of the Shares
determined as of the Date of Grant with respect to which Incentive Stock
Options (determined without regard to this sentence) are granted to an
Optionee after 1986 and are exercisable for the first time by the Optionee
in any calendar year (under all plans of the Company and its Subsidiaries)
exceeds $100,000 (or such other maximum amount which may hereafter be
specified under Section 422 of the Code), such Options shall be treated as
Options which are not Incentive Stock Options by taking such Options into
account in the order in which granted.
(b) No Incentive Stock Option shall be granted to any individual who,
on the Date of Grant, owns (within the meaning of section 422(b)(6) of the
Code) directly or indirectly stock of the Company possessing more than ten
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percent (10%) of the total combined voting power or value of all classes of
stock of the Company or any Subsidiary. For purposes of the preceding,
direct or indirect ownership shall be determined in accordance with the
attribution rules of Section 424(d) of the Code; and
(c) An Option must be clearly marked as to its character when granted.
If the Option or Options granted hereunder are not designated in Section 1(a) or
(b) in compliance with these requirements, acceptance of this Agreement will not
constitute acceptance of such designations and upon determination of such
noncompliance, such Option or Options shall be redesignated to the extent
necessary to comply with such requirements.
4. Terms and Conditions of Options.
(a) Option Price. The Option Price shall be no less than one hundred
percent (100%) of the Fair Market Value of the Shares on the Date of Grant.
(b) Nontransferable. The Option shall not be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution
and may be exercised, during the Optionee's lifetime, only by the Optionee.
(c) Exercise After Termination of Employment. Except as provided
hereafter in this subsection (c), only those Options exercisable as of the
date of the Optionee's termination of employment (determined after
application of subsection (g) hereof) may be exercised, and such Options
shall be exercisable during the ninety (90) day period following such
termination, provided that in no event shall Options be exercisable after
the expiration of ten (10) years from the Date of Grant or such earlier
date as may be specified hereunder. Options granted under the Plan shall
not be affected by any change of duties or position so long as the Optionee
continues to be an employee of the Company or any Subsidiary.
Notwithstanding the foregoing provisions of this subsection (c), upon
termination of employment by (i) early retirement or normal retirement by
an Optionee, each as determined pursuant to the Witco Corporation
Retirement Plan, (ii) death or (iii) disability as determined pursuant to
the Witco Corporation Long Term Disability Plan, any Option which would
otherwise not then be exercisable shall become immediately exercisable and
such Options shall be exercisable during the three (3) year period
following such termination; provided, however, that except in the case of
the death of the Optionee, the exercise of any Incentive Stock Option shall
qualify for Incentive Stock Option treatment only if the Optionee has been
an employee of the Company or any Subsidiary at all times during the period
beginning with the Date of Grant and ending on the day three (3) months (or
one (1) year in the case of an Optionee permanently and totally disabled as
defined in Section 22(e)(3) of the Code) before the Date of Exercise of
such Option. In the event of any question regarding the meaning of the
terms "termination", "early retirement", "normal retirement" or
"disability" the determination of the Committee shall be final and binding.
If any Optionee who has terminated employment for a reason other than death
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<PAGE>
shall die holding an Option that is not fully exercised, such Option may be
exercised, to the extent it could have been exercised by the decedent, at
any time within the greater of one year after such date of death or the
remainder of the period in which the Optionee could have exercised the
Option had he or she not died, but in no event beyond the original term of
the Option.
(d) Term of Option. No Option shall be exercisable prior to six (6)
months after the Date of Grant or the date of shareholder approval of the
Plan, whichever is later, or after (i) the expiration of ten (10) years
from the Date of Grant or (ii) such earlier date as may be specified
hereunder.
(e) Death of Optionee. In the event of the death of an Optionee, any
Option theretofore granted to such person which is then exercisable as
provided in subsection (c) shall be exercisable only by the executor or
administrator of the Optionee's estate or by the person or persons to whom
the Optionee's rights under the Option shall pass by the Optionee's will or
the laws of descent and distribution.
(f) No Right to Continuance of Employment. Nothing contained in the
Plan or in this Agreement shall confer upon the Optionee any right to
continuance of employment by the Company or its Subsidiaries, nor interfere
in any way with the right of the Company or any of its Subsidiaries to
terminate the Optionee's employment or change the Optionee's compensation
at any time.
(g) Dismissal for Cause. In the event that the Optionee shall be
dismissed from the employ of the Company or any of its Subsidiaries for any
reason which the Committee determines to constitute good cause for
dismissal, the Company shall notify the Optionee of such determination and
any Option still held by the Optionee at such time shall be canceled
effective as of the date of the Optionee's termination of employment. The
decision of the Committee as to what shall constitute good cause for
dismissal shall be final and binding upon all concerned.
5. Exercise of Options -- Purchase of Shares.
(a) Period for Exercising Option. Subject to the provisions of Section
4(c) above, an Option to purchase Shares designated in Sections 1(a) or
1(b) above shall become exercisable on the vesting dates set forth at
Exhibit A to this Agreement for the number of Shares shown for each vesting
date at Exhibit A, but no such shares may be purchased after the
Termination Date or such earlier date as may be specified hereunder.
(b) Method of Exercising Option. An Option shall be exercised by
payment to the Company of the Option Price accompanied by a written request
on a completed form prescribed by the Company for this purpose, and such
exercise shall be effective on receipt by the Secretary of the Company.
Where payment is made in Shares, such Shares shall be sent to the Secretary
of the Company accompanied by duly signed, signature guaranteed, stock
power(s). Where the purchaser is a person other than the Optionee, the
5
<PAGE>
request shall be accompanied by appropriate proof of the right of such
person or persons to exercise the Option. The Secretary of the Company,
following the decision of the Committee, will notify each Optionee of
variances resulting from the discretionary decisions of the Committee and,
where appropriate, will request additional cash payment for Shares
exercised, on account of federal, state and local withholding taxes or make
such additional adjustments with the Optionee as may be necessary. Such
additional requests for payment must be complied with by the Optionee
before Shares are issued. Moreover, the Company shall not be required to
issue or deliver any certificates for Shares purchased upon the exercise of
an Option prior to the completion of any registration or other
qualification of such Shares under any state or federal laws or rulings or
regulations of any government regulatory body, which the Company shall
determine to be necessary or advisable.
(c) Payment for Shares. Payment for Shares shall be in cash, or such
other consideration as the Committee shall determine in its sole
discretion, to be substantially equivalent to cash (including cashless
exercise procedures), or by surrender of stock certificates representing
like common stock of the Company having an aggregate Fair Market Value,
determined as of the Date of Exercise, equal to the number of Shares with
respect to which such Option is exercised multiplied by the Option Price;
provided that the Committee may impose whatever restrictions it deems
necessary or desirable with respect to the payment for Shares by the
surrender of stock certificates representing like common stock of the
Company.
(d) Issuance of Shares Necessary. No Optionee or Optionee's executor
or administrator, legatees or distributees, as the case may be, will be, or
will be deemed to be, a holder of any Shares subject to an Option unless
and until a stock certificate or certificates for such Shares are issued to
such person or persons under the terms of the Plan and this Agreement. No
adjustment shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property) or distributions or other rights for
which the record date is prior to the date such stock certificate is
issued, except as provided in Section 6 hereof.
6. Change in Stock, Adjustments, Etc.
In the event that the outstanding Shares are hereafter increased or
decreased or changed into or exchanged for a different number of shares or kind
of shares or other securities of the Company or of another corporation, by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, or a dividend payable
in capital stock, appropriate adjustment shall be made by the Committee in the
number and kind of Shares which may be purchased pursuant to the Option or
Options, to the end that the Optionee's proportionate interest shall be
maintained as before the occurrence of such event, and such adjustment of the
unexercised portion of the Option shall be made without change of the total
Option Price applicable to such unexercised portion and with a corresponding
adjustment in the Option Price per share; provided, however, that each such
adjustment in the number and kind of Shares, including any adjustment in the
Option Price, shall be made in such manner as not to constitute a modification
as defined in Section 424(h) of the Code. Any such adjustment made by the
Committee shall be conclusive. The grant of an Option pursuant to the Plan shall
not affect in any way the right or power of the Company to make adjustments,
6
<PAGE>
reclassifications, reorganizations or changes in its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
7. Amendment and Termination.
The Board of Directors and the shareholders of the Company may
terminate the Plan or make such amendments thereof under the terms and
conditions stated in the Plan, provided, however, that no such termination or
amendment shall, without the consent of the Optionee, affect or impair the right
of such individual under the Option or Options evidenced by this Agreement.
8. No Obligation to Exercise Option.
Granting of an Option shall impose no obligation on the Optionee to
exercise such Option.
9. Withholding of Taxes.
The Company's obligation to deliver Shares upon the exercise of any
Option shall be subject to applicable federal, state and local tax withholding
requirements. In furtherance of the foregoing, the following shall apply:
(a) Nonqualified Stock Options. If the Optionee exercises a
Nonqualified Stock Option, the Optionee agrees that the Company shall be
entitled either to (i) reduce the number of Shares otherwise issuable,
subject to such limitations as may be imposed by Rule 16b-3 under Section
16(b) of the Exchange Act, or (ii) require as a condition of delivery of
Shares that the Optionee remit to the Company an amount sufficient to
satisfy the Company's federal, state and local withholding tax obligations
with respect to the exercise of the Option.
(b) Incentive Stock Options. If the Optionee exercises an Incentive
Stock Option, the Optionee agrees (i) to notify the Company if any or all
of such Shares are disposed of by the Optionee within two years after Date
of Grant or within one year after the date that the Shares were transferred
to the Optionee pursuant to his exercise of the Option, and (ii) to remit
to the Company, at the time of and in the case of any such disposition,
such amount as the Company shall determine to be sufficient to satisfy the
Company's federal, state and local withholding tax obligations with respect
to such disposition, if any, whether or not, as to both (i) and (ii), the
Optionee is in the employ of the Company at the time of such disposition.
10. Effect of Change in Control or Tender Offer.
(a) The Option or Options evidenced by this Agreement shall be
exercisable in full for a period of thirty (30) days following the date of
a Change in Control of the Company.
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(b) A tender offer or exchange offer for Shares which results
in a Change in Control shall be deemed to constitute a Tender Offer.
(c) All Options outstanding at the end of the period specified in
subsection (a) of this section 10 shall be surrendered to the Secretary of
the Company for cancellation in exchange for a settlement payment. The
amount paid in settlement for the surrender and cancellation of each Option
shall be the higher of:
(i) the excess of the Fair Market Value of the Shares subject to
the Option (regardless of exercisability) at the end of the period
specified in subsection (a) hereof, over the Option Price; or
(ii) the excess of the "Offer Price per Share" (as hereinafter
defined), if any, of the Shares subject to the Option (regardless of
exercisability) over the Option Price.
As used in subparagraph (ii) above, the term "Offer Price per Share"
shall mean the highest price per Share payable in any Tender Offer which
was in effect at any time during the period beginning 60 days prior to the
date on which such Option was surrendered. Any securities or other property
which are part of the consideration paid for Shares in a Tender Offer shall
be valued in determining the Offer Price per Share at the valuation placed
on such securities or property by the corporation, person or other entity
making the Tender Offer.
(d) The Committee at any time may exempt from the operation of
subsections (a) and (c) hereof any outstanding Option selected by the
Committee or may exempt all outstanding Options. No exemption shall,
however, be effective after payment or delivery of Shares has been made in
settlement of a surrendered Option.
(e) The Committee shall have sole discretion to determine whether
settlement payments shall be made wholly in cash, wholly in Shares or by a
combination of cash and Shares. In the event no action is taken by the
Committee to determine the method of payment, the amount due shall be paid
in cash.
(f) To the extent that the exercise of an Option during the thirty
(30) day period referred to in subsection (a) above or the surrender of an
Option as provided for in subsection (c) above would result in liability
under Section 16(b) of the Exchange Act to an Optionee, the Committee shall
exempt from the operation of subsections (a) and (c) hereof any such
Options, pursuant to subsection (d) above, until such time that the
exercise of such Option would not result in liability under Section 16(b)
of the Exchange Act.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
executed by its duly authorized officers on the day and year first above
written.
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Attest: WITCO CORPORATION
_________________________ By:__________________
Secretary
Accepted by Optionee:
_______________________ ___________________________
Date Optionee
9
EXHIBIT 5
June 30, 1995
Witco Corporation
Form S-8 Registration Statement
Dear Sirs:
We have acted as counsel for Witco Corporation, a Delaware
Corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement") being filed by
the Company on the date hereof with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to 2,600,000 shares of
Common Stock, par value $5.00 per share, of the Company (the "Common
Stock"), which may be issued pursuant to the 1995 Stock Option Plan
for Employees of Witco Corporation and its Subsidiaries (the "Plan").
In connection with the foregoing, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed
necessary or appropriate for the purpose of this opinion.
Based upon the foregoing, we are of opinion that the Common Stock
is validly authorized and, when issued under the Plan in accordance
with the terms thereof for consideration having a value not less than
the par value thereof, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the Rules and
Regulations of the Commission promulgated thereunder.
Very truly yours,
CRAVATH, SWAINE & MOORE
Dustan McCoy, Esq.
Witco Corporation
One American Lane
Greenwich, CT 06831-2559
EXHIBIT 15
LETTER RE: UNAUDITED FINANCIAL INFORMATION
ACKNOWLEDGMENT LETTER
June 27, 1995
The Board of Directors
Witco Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-8, No. 33-_____) pertaining to the 1995 Stock Option Plan for Employees
of Witco Corporation and its Subsidiaries, of our report dated May 10, 1995
relating to the unaudited condensed consolidated interim financial statements of
Witco Corporation and Subsidiary Companies which is included in its Form 10-Q
for the quarter ended March 31, 1995.
Pursuant to Rule 436(c) of the Securities Act of 1933, 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 LLP
Stamford, Connecticut
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8, No. 33-______) pertaining to the 1995 Stock Option Plan for Employees of
Witco Corporation and its Subsidiaries of our report dated January 26, 1995,
with respect to the consolidated financial statements and schedule of Witco
Corporation and Subsidiary Companies included in its Annual Report (Form 10-K)
for the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Stamford, Connecticut
June 27, 1995
