As filed with the Securities and Exchange Commission on October 23, 1998
Registration No. 333-[ ]
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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)
Witco Corporation Employee Retirement Savings Plan
(Full title of the plan)
Dustan E. McCoy, Esq.
WITCO CORPORATION
One American Lane
Greenwich, CT 06831
(Name and address of agent for service)
(203) 552-2000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Title of securities to be Amount of shares to offering price per aggregate offering Amount of
registered be registered share (1) price(1) registration fee
Common Stock, par 1,000,000 $20.1875 $20,187,500 $5,612.13
value $5.00 per share
=========================== ===================== ======================= =============================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
in accordance with Rule 457(h) under the Securities Act of 1933, as
amended, on the basis of the average of the highest and lowest prices
of the registrant's Common Stock reported on the New York Stock
Exchange Composite Tape on October 22, 1998.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, as amended, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee benefit
plan described herein.
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2
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, 1997;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 1998, and June 30, 1998;
and
(c) The Registrant's Current Report on Form 8-K dated January 7,
1998.
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"), and 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 the 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
the State 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 reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the General Corporation Law of
the State 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 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 as described above, 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
that the Court of Chancery or the court in which such action or suit was
brought shall determine that, despite the adjudication of 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.
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3
Section 145 of the General Corporation Law of the State of
Delaware further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsections (a) and (b)
thereof, 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, or granted pursuant to, 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 Registrant (i) shall
indemnify any director or officer 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
otherwise involved in, any action, suit or proceeding described in such
subsections (a) and (b) by reason of the fact that he is or was a director,
officer, employee or agent of the Registrant or 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,
including service with respect to employee benefit plans, against any and
all expenses, liabilities, amounts paid in settlement and amounts expended
in seeking indemnification granted to such person, actually and reasonably
incurred in connection therewith.
An individual indemnification agreement is in effect between
Witco and each director and officer thereof. Each agreement provides for
total or partial indemnification in excess of that expressly permitted by
statute for certain indemnifiable events, as described therein, relating to
service as a past or current director or officer of Witco.
Witco holds a directors and officers liability insurance policy
with a liability limit of $50,000,000. There is a $500,000 deductible for
acts indemnifiable by Witco.
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 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1994).
5.1 Opinion of Dustan E. McCoy, General Counsel and Corporate
Secretary of the Registrant, as to the legality of the securities
to be registered.
5.2 The Registrant will submit the Witco Corporation Employee
Retirement Savings Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify the Plan.
15.1 Letter re: unaudited interim financial information.
23.1 Consent of Ernst & Young LLP.
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4
23.2 Consent of Dustan E. McCoy (included in Exhibit 5.1)
24.1 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (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
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)(l)(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.
(b) The undersigned Registrant hereby undertakes 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.
(c) 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.
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5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints E. GARY COOK, DUSTAN E. MCCOY or
CAMILLO J. DIFRANCESCO 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 all 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 city of Greenwich, State
of Connecticut, on October 23, 1998.
WITCO CORPORATION
By: /s/ E. Gary Cook
-------------------------------
E. Gary Cook
Chairman of the Board,
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Name Title Date
/s/ E. Gary Cook Chairman of the Board, October 23, 1998
- ------------------------- Chief Executive Officer and
E. Gary Cook President (Principal
Executive Officer)
/s/ Roger L. Sharp Executive Vice President, October 23, 1998
- ------------------------- Chief of Global Operations and
Roger L. Sharp Director
/s/ Camillo J. DiFrancesco Senior Vice President and October 23, 1998
- -------------------------- Chief Financial Officer
Camillo J. DiFrancesco (Principal Financial and
Accounting Officer)
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6
/s/ Donald L. Blankenship Director October 23, 1998
- --------------------------
Donald L. Blankenship
/s/ Bruce R. Bond Director October 23, 1998
- --------------------------
Bruce R. Bond
/s/ Simeon Brinberg Director October 23, 1998
- --------------------------
Simeon Brinberg
/s/ William G. Burns Director October 23, 1998
- --------------------------
William G. Burns
/s/ Louise Goeser Director October 23, 1998
- --------------------------
Louise Goeser
/s/ William R. Grant Director October 23, 1998
- --------------------------
William R. Grant
/s/ Richard M. Hayden Director October 23, 1998
- --------------------------
Richard M. Hayden
/s/ Harry G. Hohn Director October 23, 1998
- --------------------------
Harry G. Hohn
/s/ Nicholas Pappas Director October 23, 1998
- --------------------------
Nicholas Pappas
- -------------------------- Director October 23, 1998
Dan Samuel
/s/ Bruce F. Wesson Director October 23, 1998
- --------------------------
Bruce F. Wesson
/s/ William Wishnick Director October 23, 1998
- --------------------------
William Wishnick
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7
The Plan. Pursuant to the requirements of the Securities Act of
1933, the administrators of the Witco Corporation Employee Retirement
Savings Plan have duly caused this Registration Statement to be signed on
its behalf by the undersigned thereto duly authorized, in the city of
Greenwich, State of Connecticut, on October 23, 1998.
WITCO CORPORATION EMPLOYEE RETIREMENT
SAVINGS PLAN
By /s/ Simeon Brinberg
-------------------------------------
Simeon Brinberg
Chairman of Pension Committee as
Administrator of Witco Corporation
Employee Retirement Savings Plan
<PAGE>
9
INDEX TO EXHIBITS
WITCO CORPORATION EMPLOYEE RETIREMENT SAVINGS PLAN
Exhibit Description
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1994).
5.1 Opinion of Dustan E. McCoy, General Counsel and Corporate
Secretary of the Registrant, as to the legality of the
securities to be registered.
5.2 The Registrant will submit the Witco Corporation Employee
Retirement Savings Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and will
make all changes required by the IRS in order to qualify the
Plan.
15.1 Letter re: unaudited interim financial information.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Dustan E. McCoy (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature pages hereof).
<PAGE>
Exhibit 5.1
Witco Corporation
One American Lane
Greenwich, CT 06831-2559
(203) 552-2802
(203) 552-2202 (fax)
October 23, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
As Senior Vice President, General Counsel of Witco Corporation (together
with its subsidiaries, the "Company"), I advise you as follows in
connection with the filing by the Company of a Registration Statement on
Form S-8 being filed by the Company on the date hereof with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to 1,000,000 shares of Common Stock, par
value $5.00 per share, of the Company (the "Common Stock"), which may be
issued pursuant to the Witco Corporation Employee Retirement Savings Plan
(the "Plan").
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such corporate documents and records which I have
deemed necessary or appropriate for the purposes of the opinion,
certificates of public officials and officers of the Company and such other
instruments and have conducted such other investigations of fact and law as
I have deemed necessary or advisable for purposes of this opinion. I have
assumed that the signatures (other than those of officers of the Company)
on all documents that I have examined are genuine.
Based upon the foregoing, I am of the opinion that the Common Stock of the
Company which may be purchased in accordance with the terms of the Plan, is
validly authorized and, when purchased pursuant to the terms of the Plan,
will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of the opinion as an exhibit to the
registration statement.
Very truly yours,
/s/ Dustan E. McCoy
Dustan E. McCoy
Senior Vice President, General Counsel and
Corporate Secretary
<PAGE>
Exhibit 15.1
LETTER RE: UNAUDITED FINANCIAL INFORMATION
ACKNOWLEDGMENT LETTER
October 20, 1998
The Board of Directors
Witco Corporation
We are aware of the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Witco Corporation Employee
Retirement Savings Plan of our reports dated May 11, 1998, and August 12,
1998, 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 quarters ended March 31, 1998 and June 30 1998.
Pursuant to Rule 436(c) of the Securities Act of 1933, our reports are not
a part of the registration statement prepared or certified by accountants
within the meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ ERNST & YOUNG
Stamford, Connecticut
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Witco Corporation Employee Retirement Savings
Plan of our report dated February 2, 1998, 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, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG
Stamford, Connecticut
October 20, 1998
