As filed with the Securities and Exchange Commission on May 14, 1997
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WAINOCO OIL CORPORATION
(Exact name of registrant as specified in its charter)
Wyoming 74-1895085
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10000 Memorial Drive
Suite 600
Houston, Texas 77024
(713) 688-9600
(Address of registrant's principal executive offices, including zip code)
NONQUALIFIED STOCK OPTION
AGREEMENTS
(Full Title of Plan)
------------
James R. Gibbs Copy to: Edward Rhyne, Esq.
President and Chief Executive Officer Gardere Wynne Sewell
Wainoco Oil Corporation & Riggs, L.L.P.
10000 Memorial Drive, Suite 600 Three Allen Center
Houston, Texas 77024-3411 333 Clay Avenue, Suite 800
(713) 688-9600 Houston, Texas 77002
(713) 308-5500
(Name and address, including zip code, and telephone number,
including area code, of registrant's agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class Proposed maximum Proposed maximum
of securities to be Amount to be offering price per aggregate offering Amount of
registered registered (1) share (2) price (1)(2) registration fee (2)
- ------------------- -------------- ------------------ ------------------ --------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 457,700 shares $3.375 $1,544,738.00 $469.00
</TABLE>
(1) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of operation of the
anti-dilution provisions of the Plan described herein.
(2) Calculated pursuant to Rule 457(h), based on the price at which the
options may be exercised.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement.
(1) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
(2) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.
(3) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A, as filed with the
Securities and Exchange Commission (Commission File No. 1-7627).
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents. The audited financial statements incorporated by reference in this
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said report. Future financial statements of the Company and the reports thereon
of Arthur Andersen LLP also will be incorporated by reference in this
registration statement in reliance upon the authority of that firm as experts in
giving those reports to the extent said firm has audited those financial
statements and consented to the use of their reports thereon.
Item 6. Indemnification of Directors and Officers.
Sections 17-16-850 through 17-16-858 of the Wyoming Business Corporation Act
provide that a corporation may indemnify any person who was, is or may be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether formal or
informal, 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 corporation's request
as a director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against judgments, settlements, penalties, fines,
including an excise tax assessed with respect to an employee benefit plan, and
reasonable expenses, including counsel fees, incurred in respect to such action,
suit or proceeding if he conducted himself in good faith and reasonably believed
that his conduct was in or at least not opposed to the corporation's best
interests and, with respect to any criminal action, suit or proceeding, he had
no reasonable cause to believe his conduct was unlawful.
Article Eight of the Registrant's Articles of Incorporation, as amended,
provides for the indemnification of directors, officers, employees and agents of
the Registrant. Specifically, Article Eight provides in part that:
- 1 -
<PAGE>
The corporation shall indemnify, in the manner and to the full extent
authorized by law (as now in effect or later amended), any person who was,
is or may be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
including 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 other enterprise, against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with
the action, suit, proceeding or investigation, and judgments, fines and
amounts paid in settlement 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. The termination of
any action, suit, proceeding or investigation by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that such person did not act in
good faith and in a manner which is 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.
The Bylaws of the Registrant also contain indemnification provisions that
conform to Article Eight of the Registrant's Articles of Incorporation, as
amended.
The Registrant maintains Directors and Officers' Liability Insurance and has
entered into indemnification agreements with its directors and certain of its
officers.
Item 8. Exhibits.
5.1 Opinion of Gardere Wynne Sewell & Riggs, L.L.P.
10.1 Form of Nonqualified Stock Option Agreements
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Gardere Wynne Sewell & Riggs, L.L.P. (included as part of
Exhibit 5.1)
24 Power of Attorney (set forth on the signature pages of the
registration statement)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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;
(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 this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
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<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 Securities and Exchange 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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<PAGE>
SIGNATURES
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 Houston, State of Texas, on the 14th day of May,
1997.
WAINOCO OIL CORPORATION
(Registrant)
By: /s/ James R. Gibbs
-------------------------------------
James R. Gibbs
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints James R.
Gibbs and Julie H. Edwards true and lawful attorneys-in-fact and agents, each
acting alone, with full powers of substitution and re-substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this 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 attorneys-in-fact and agents, each acting alone, full powers 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
attorneys-in-fact and agents, each acting alone, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below in the City of Houston, State of Texas on the 14th
day of May, 1997.
Name Title
- ---------------------- -----------------------------------------------
/s/ James R. Gibbs President, Chief Executive Officer and Director
- ---------------------- (principal executive officer)
James R. Gibbs
/s/ Julie H. Edwards Senior Vice President - Finance and Chief
- ---------------------- Financial Officer
Julie H. Edwards (principal financial officer)
/s/ Joel M. Mann Vice President - Controller
- ---------------------- (principal accounting officer)
Joel M. Mann
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<PAGE>
Name Title
- ---------------------- -----------------------------------------------
/s/ Douglas Y. Bech Director
- ----------------------
Douglas Y. Bech
/s/ Paul B. Loyd, Jr. Director
- ----------------------
Paul B. Loyd, Jr.
/s/ James S. Palmer Director
- ----------------------
James S. Palmer
/s/ Derek A. Price Director
- ----------------------
Derek A. Price
/s/ Carl W. Schafer Director
- ----------------------
Carl W. Schafer
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<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------- ----------------------------------------------- ------------
5.1 Opinion of Gardere Wynne Sewell & Riggs, L.L.P.
10.1 Form of Nonqualified Stock Option Agreements
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Gardere Wynne Sewell & Riggs, L.L.P.
(included as part of Exhibit 5.1)
24 Power of Attorney (set forth on
the signature pages of the
registration statement)
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Exhibit 5.1
[Letterhead of Gardere Wynne Sewell & Riggs, L.L.P.]
713-308-5505
May 14, 1997
Wainoco Oil Corporation
10000 Memorial Drive
Suite 600
Houston, Texas 77024
Gentlemen:
We have acted as counsel for Wainoco Oil Corporation, a Wyoming corporation
(the "Company"), in connection with the Registration Statement on Form S-8
(the "Registration Statement"), filed with the Securities and Exchange
Commission in connection with the registration under the Securities Act of
1933, as amended, of 457,700 shares of the Company's Common Stock, no par
value (the "Common Stock"), to be issued upon exercise of nonqualified stock
options granted by the Company to certain of its employees (the "Nonqualified
Options").
With respect to the foregoing, we have examined such documents and questions
of law as we have deemed necessary to render the opinions expressed below.
Based upon the foregoing, we are of the opinion that the Common Stock, when
issued, sold and delivered in the manner and for the consideration stated in
the form of Nonqualified Stock Option Agreement included as Exhibit 10.1 to
the Registration Statement, will be duly and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement.
This opinion letter is as of the date hereof, and we undertake no obligation,
and expressly disclaim any obligation, to advise you of any change in the
matters set forth herein. Please note that the opinions expressed herein
relate only to the matters specifically set forth, and no opinion is implied
or should be inferred as to any other matters.
Very truly yours,
GARDERE WYNNE SEWELL & RIGGS, L.L.P.
By: /s/ Edward E. Rhyne
Edward E. Rhyne, Partner
Exhibit 10.1
FORM OF
WAINOCO OIL CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
Agreement made effective the ____ day of __________, 199_, between Wainoco
Oil Corporation, a Wyoming corporation (the "Company"), and
("Optionee").
By affording Optionee the opportunity to purchase shares of the Common
Stock, no par value, of the Company ("Stock"), and in consideration of the
mutual agreements and other matters set forth herein, the Company and Optionee
hereby agree as follows:
1. Grant of Option. The Company hereby irrevocable grants to Optionee the
right and option (the "Option") to purchase all or any part of an aggregate of
shares of Stock, on the terms and conditions set forth herein. This Option is
not intended to qualify as an "incentive stock option" within the meaning of
Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
2. Purchase Price. The purchase price of Stock purchased pursuant to the
exercise of this Option shall be $______ per share, which has been determined to
be not less than the fair market value of the Stock at the date of grant of the
Option.
3. Exercise of Option. (a) The Option granted pursuant to this Agreement
may be exercised during the period beginning on the later of [the grant date]
and the date upon which registration of the shares underlying the Option becomes
effective (the "Initial Exercise Date") and ending [five years from grant date]
in whole at any time or in part from time to time, but only as to the shares as
to which the right to exercise has matured at the time of exercise. This option
will become exercisable as to the number of shares set opposite the date or
dates set forth below:
Date Number of Shares
------------------------------------------------------ ----------------
Initial Exercise Date/[First Ann. of Grant Date] [20%]
[First Ann. of Grant Date]/[Second Ann. of Grant Date] [40%]
[Second Ann. of Grant Date]/[Third Ann. of Grant Date] [70%]
[Third Ann. of Grant Date] [100%]
(b) Subject to the earlier expiration of the Option as herein provided and
subject to the terms and conditions contained herein, the Option may be
exercised, by written notice (which complies in all respects with the provisions
of this Agreement) to the Company at its principal executive office addressed to
the attention of the Secretary of the Company, at any time and from time to time
beginning on the Initial Exercise Date, identifying the option and specifying
the number of shares that the Optionee decides to purchase, such exercise to be
effective at the time of receipt of such written notice at the Company's
principal executive office during normal business hours. The notice shall not
be considered to be properly given unless accompanied by all documentation
deemed appropriate by the Compensation Committee of the Board of Directors of
the Company (the "Committee") to reflect exercise of the Option and compliance
with all applicable laws, rules and regulations. The notice shall state a
requested delivery date and the denominations for the share certificate or
certificates. The Company shall use its best efforts to deliver the share
certificates within five business days.
4. Payment of Option Exercise Price. The full price per share (the
"Exercise Price") for the shares with respect to which the Option is being
exercised shall be payable to the Company at the time of exercise (giving
notice) (i) in cash or by check payable and acceptable to the Company or (ii)
subject to the approval of the Committee, by tendering to the Company shares of
Stock owned by the Optionee having an aggregate market value per share (closing
price on a publicly traded stock exchange) as of the date of exercise and tender
that is not greater than the Exercise Price for the shares with respect to which
the Option is being exercised and by paying any remaining amount of the Exercise
Price as provided in (i) above; however, the Committee may, upon confirming that
the Optionee owns the number of additional shares being tendered, authorize the
issuance of a new certificate for the number of shares being acquired pursuant
to the exercise of the Option less the number of shares being tendered upon the
exercise and return to the Optionee (or not required surrender of) the
certificate for the shares being tendered upon the exercise. Payment
instruments will be received subject to collection.
5. Non-Transferability. The Option may not be transferred by Optionee
otherwise than by will or the laws of descent and distribution.
6. Termination of Employment. (a) If the Optionee's employment with the
Company is terminated for reasons other than (i) retirement pursuant to a
retirement plan of the Company ("retirement"), (ii) permanent disability or
(iii) death, the Option shall be exercisable by him, subject to Section (3)
above, only within three months after such termination, but only to the extent
the Option was exercisable on the termination date.
(b) If, however, any termination of employment is due to retirement or
permanent disability, the Optionee shall have the right, subject to the
provisions of Section (3) above, to exercise the Option at any time within 12
months after the termination date to the extent that the Optionee was entitled
to exercise the same on the termination date. Whether any termination of
employment is due to retirement or permanent disability and whether an
authorized leave of absence or absence on military or government service or for
other reasons shall constitute a termination of employment for the purposes of
this Agreement shall be determined by the Committee.
(c) If the Optionee shall die while entitled to exercise the Option, the
Optionee's estate, personal representative or beneficiary, as the case may be,
shall have the right, subject to the provisions of Section (3) above, to
exercise the Option at any time within 12 months after the date of the
Optionee's death, to the extend that the Optionee was entitled to exercise the
same on the day of the Optionee's death.
7. Withholding of Tax. To the extent that the exercise of the Option is a
taxable event with respect to which the Company has a duty to withhold for
federal or state income tax purposes, Optionee shall pay to the Company at the
time of such exercise (or such time as the law permits if Optionee is subject to
Section 16(b)) such money as the Company may require to meet its obligation
under applicable tax laws or regulations, and, if Optionee fails to do so, the
Company is authorized to withhold from any cash remuneration then or thereafter
payable to Optionee any tax required to be withheld by reason of such resulting
compensation income or otherwise refuse to issue or transfer any shares
otherwise required to be issued pursuant to the terms hereof.
8. Securities Matters. The Option granted herein shall be subject to the
requirement that, if at any time the Board shall determine, in its discretion,
that the listing, registration or qualification of the shares subject to such
Option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the issue or purchase of
shares hereunder, such Option may not be exercised in whole or in part unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not reasonably acceptable to the
Board.
9. Recapitalization or Reorganization. (a) The shares with respect to
which the Option may be exercised are shares of Stock as presently constituted.
If, and whenever, prior to the expiration of the Option, the Company shall
effect a subdivision of shares of Stock or the payment of a stock dividend on
Stock without receipt of consideration by the Company, the number of shares of
Stock with respect to which the Option may thereafter be exercised shall be
proportionately increased, and the purchase price per share under the Option
shall be proportionately reduced. If, and whenever, prior to the expiration of
the Option, the Company shall effect a consolidation of shares of Stock, the
number of shares of Stock with respect to which the Option may thereafter be
exercised shall be proportionately reduced, and the purchase price per share
under the Option shall be proportionately increased.
(b) The issuance by the Company of shares of stock of any class or
securities convertible into shares of stock of any class, for cash, property,
labor or services, upon direct sale, upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, and in any case whether or not
for fair value, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of shares of Stock subject to the Option or the
Exercise Price per share.
(c) If the Company effects a recapitalization or otherwise materially
changes its capital structure (both of the foregoing are herein referred to as a
"Fundamental Change"), then thereafter upon any exercise of the Option, the
Optionee shall be entitled to purchase under the Option, in lieu of the number
of shares of Stock that would have been received, the number and class of shares
of stock and securities to which the Optionee would have been entitled pursuant
to the terms of the Fundamental Change if, immediately prior to such Fundamental
Change, the Optionee had been the holder of record of the number of shares of
Stock covered by the Option.
10. Employment Relationship. For purposes of this Agreement, Optionee
shall be considered to be in the employment of the Company as long as Optionee
remains an employee of either the Company, a parent or subsidiary corporation
(as defined in Section 425 of the Code) of the company, or a corporation or a
parent or subsidiary of such corporation assuming or substituting a new
agreement for this Agreement. Any question as to whether and when there has
been a termination of such employment, for purposes of this Agreement, and the
cause of such termination, for purposes of this Agreement, shall be determined
by the Committee, and its determination shall be final. Nothing herein shall
give Optionee any right to continued employment or affect in any manner the
right of the Company or any subsidiary or parent corporation to terminate the
employment of Optionee.
11. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Optionee. This Agreement and all actions taken shall be governed by and
constructed in accordance with laws of the State of Texas. The Committee shall
have authority to construe the terms of this Agreement, and the Committee's
determinations shall be final and binding on Optionee and the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and Optionee has executed this Agreement as of the day and year first
above written.
WAINOCO OIL CORPORATION
By: __________________________
OPTIONEE
______________________________
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 12,
1997, incorporated by reference in Wainoco Oil Corporation's Form 10-K for the
year ended December 31, 1996, and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
May 13, 1997
