<PAGE>
As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
FMC CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-0479804
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
200 East Randolph Drive 60601
Chicago, Illinois (Zip Code)
(Address of Principal Executive Offices)
FMC Corporation Non-Qualified Retirement and Thrift Plan
(Full Title of the Plan)
Steven H. Shapiro
Associate General Counsel and Assistant Secretary
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
(Name and Address of Agent for Service)
(312) 861-6000
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Steven J. Gavin
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
(312) 558-5600
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
to be registered registered price per unit offering price (1) registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
FMC Corporation Non-Qualified Retirement $25,000,000 100% $25,000,000 $6,950
and Thrift Plan Obligations (2)...........
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of computing the registration fee.
(2) The FMC Corporation Non-Qualified Retirement and Thrift Plan Obligations
are unsecured obligations of FMC Corporation to pay deferred compensation
in the future in accordance with the FMC Corporation Non-Qualified
Retirement and Thrift Plan, as amended.
<PAGE>
PART I -- INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
FMC Corporation shall deliver the document containing the information
in Part I of this Registration Statement on Form S-8 to each participant in
the FMC Corporation Non-Qualified Retirement and Thrift Plan as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Such document is not being filed with or included in
this Registration Statement (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"). Such document and the documents
incorporated by reference into this Registration Statement pursuant to Item
3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by FMC Corporation,
a Delaware corporation (the "Company" or the "Registrant"), are
incorporated, as of their respective dates, into this Registration
Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, as filed with the Commission on March 18, 1998
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998,
as filed with the Commission on May 13, 1998, August 13, 1998 and
October 30, 1998, respectively, under the Exchange Act; and
(c) The Company's Current Reports on Form 8-K dated April 15, 1998,
April 17, 1998 and April 24, 1998, as filed with the Commission on
April 17, 1998, April 20, 1998 and April 27, 1998, respectively, under
the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act 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 such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Under the FMC Corporation Non-Qualified Retirement and Thrift Plan, as
amended (the "Plan"), the Company provides a select group of management or
highly compensated employees ("Participants") identified by the Employee Welfare
Benefits Plan Committee (the "Committee") of the Company who are prohibited from
(i) fully contributing to the FMC Employees' Thrift and Stock Purchase Plan and
(ii) receiving full benefits under the FMC Corporation Salaried Employees'
Retirement Plan (collectively, the "Tax-Qualified Plans") due to limitations
imposed on the Tax-Qualified Plans by the Internal Revenue Code the opportunity
to elect to defer all or a specified portion of their compensation. The portions
of compensation deferred under such elections are referred to herein as the
"Obligations".
The Obligations are unsecured general obligations of the Company to
pay the deferred compensation in the future in accordance with the terms of
the Plan and rank equally with other unsecured and unsubordinated
indebtedness of the Company. The Company is not required to fund or
otherwise segregate assets to be used for the payment of the Obligations.
Notwithstanding the foregoing, the Company has established a grantor trust
(the "Trust") to hold assets to be used for payment of the Obligations.
However, the assets of the Trust shall remain the assets of the Company
subject to the claims of its general creditors. The Obligations shall be
paid in cash on the last day of the sixth calendar
<PAGE>
month following the calendar month in which such Participant's employment
with the Company terminates, subject to certain exceptions. There is no
trading market for the Obligations.
Compensation deferred by a Participant ("Participant Deferrals") shall
be held in individual bookkeeping accounts for each Participant established
by the Committee. Company matching contributions ("Company Contributions")
shall be held in an individual bookkeeping account for each Participant
established by the Committee. Participant Deferrals shall be deemed to be
invested in accordance with the investment alternatives the Participants
select and the terms of the Plan. The investment alternatives are
determined by the Committee and currently include (i) Fidelity U.S. Bond
Index Fund, (ii) Spartan U.S. Equity Index Fund, (iii) Fidelity Puritan(r)
Fund, (iv) Fidelity Blue Chip Growth Fund, (v) Fidelity Diversified
International Fund, (vi) Fidelity Retirement Government Money Market
Portfolio, (vii) Mutual Qualified Fund Class Z, (viii) FMC Unitized Stock
Fund, (ix) Sequoia Fund, Inc. and (x) Clipper Fund. Company Contributions
shall be automatically deemed to be invested in common stock of the Company
("Common Stock"). Each Participant account shall be deemed to receive all
interest, dividends, earnings and other property that would have been
received with respect to an investment alternative or Common Stock, as the
case may be, deemed to be held in such account if the Company actually
owned such an investment alternative or Common Stock, as the case may be;
provided, however, no Participant shall be deemed to receive voting rights
with respect to Common Stock deemed to be held in such account.
A Participant's rights to any amounts credited to his accounts shall
not be grantable, transferable, pledgeable or otherwise assignable by the
Participant and may only pass upon the Participant's death pursuant to the
terms of the Plan, pursuant to a beneficiary designation made by a
Participant in accordance with the terms of the Plan or pursuant to the
laws of inheritance. The Obligations are not subject to early redemptions,
in whole or in part. The Obligations are not convertible into any other
security of the Company. No trustee has been appointed to take action with
respect to the Obligations, and each Participant shall be responsible for
enforcing his own rights with respect to the Obligations. The Company
reserves the right to amend or terminate the Plan; provided, however, that
any such action shall not adversely affect the right of any Participant to
receive any amounts credited to his accounts.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being registered hereby has been passed
upon by Steven H. Shapiro, Esq., Associate General Counsel and Assistant
Secretary of the Company. Mr. Shapiro is not currently eligible to
participate in the Plan. However, Mr. Shapiro will be eligible to
participate in the Plan in the future. Mr. Shapiro holds options to
acquire 2,500 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Reference is made to Section
145 of the Delaware General Corporation Law, as amended (the "GCL"), which
provides that a corporation may 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 proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at its
request in such capacity of another corporation or business organization
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
person's conduct was unlawful. A Delaware corporation may indemnify
officers and directors in an action by or in the right of a corporation
under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
Article XI of the Company's Restated By-Laws provides that the Company
shall indemnify its directors and officers to the full extent permitted by
Section 145 of the GCL.
-2-
<PAGE>
The Company's Restated Certificate of Incorporation provides that the
Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of their
fiduciary duty as directors, except (a) for any breach of the directors'
duty of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the
GCL or (d) for transactions from which directors derive improper personal
benefit.
The Company maintains directors' and officers' liability insurance
coverage.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 FMC Corporation Non-Qualified Retirement and Thrift Plan, as
filed with the Commission on March 18, 1998 as Exhibit 10.8
to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 (File No. 1-02376) and
incorporated herein by reference
4.2 Amendment to the FMC Corporation Non-Qualified Retirement
and Thrift Plan
5.1 Opinion of Steven H. Shapiro, Esq. as to the legality of the
securities being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Steven H. Shapiro, Esq. (included as part of
Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page hereof)
</TABLE>
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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; and
(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 (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
this Registration Statement.
-3-
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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 Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in this 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
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, FMC Corporation
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 Chicago, State of Illinois, on December 29, 1998.
FMC CORPORATION
By: /s/ Michael J. Callahan
---------------------------------------
Name: Michael J. Callahan
Title: Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael J. Callahan, Ronald
D. Mambu and J. Paul McGrath, and each or any of them, as his or her true
and lawful attorney-in-fact and agent, with full power of substitution, for
him or her and in his or her name, place and stead, in any and all
capacities, to sign any or all amendments or 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
and each of them full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that each such attorney-in-fact and agent, or his
substitute, may lawfully do or cause to be done by virtue thereof.
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:
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------------ ---------------------------------- --------------------------
<S> <C> <C>
/s/ Robert N. Burt Chairman of the Board, Chief December 29, 1998
- --------------------------------- Executive Officer and Director
Robert N. Burt (Principal Executive Officer)
/s/ Larry D. Brady President and Director December 29, 1998
- ---------------------------------
Larry D. Brady
/s/ Michael J. Callahan Executive Vice President and Chief December 29, 1998
- --------------------------------- Financial Officer (Principal
Michael J. Callahan Financial Officer)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Ronald D. Mambu Vice President and Controller December 29, 1998
- --------------------------------- (Principal Accounting Officer)
Ronald D. Mambu
/s/ B.A. Bridgewater, Jr. Director December 29, 1998
- ---------------------------------
B.A. Bridgewater, Jr.
/s/ Patricia A. Buffler Director December 29, 1998
- ---------------------------------
Patricia A. Buffler
/s/ Albert J. Costello Director December 29, 1998
- ---------------------------------
Albert J. Costello
/s/ Paul L. Davies, Jr. Director December 29, 1998
- ---------------------------------
Paul L. Davies, Jr.
/s/ Jean A. Francois-Poncet Director December 29, 1998
- ---------------------------------
Jean A. Francois-Poncet
/s/ Edward C. Meyer Director December 29, 1998
- ---------------------------------
Edward C. Meyer
/s/ Edward J. Mooney Director December 29, 1998
- ---------------------------------
Edward J. Mooney
/s/ William F. Reilly Director December 29, 1998
- ---------------------------------
William F. Reilly
/s/ James R. Thompson Director December 29, 1998
- ---------------------------------
James R. Thompson
/s/ Clayton Yeutter Director December 29, 1998
- ---------------------------------
Clayton Yeutter
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 FMC Corporation Non-Qualified Retirement and Thrift Plan, as
filed with the Commission on March 18, 1998 as Exhibit 10.8 to
the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (File No. 1-02376) and incorporated
herein by reference
4.2 Amendment to the FMC Corporation Non-Qualified Retirement and
Thrift Plan
5.1 Opinion of Steven H. Shapiro, Esq. as to the legality of the
securities being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Steven H. Shapiro, Esq. (included as part of Exhibit
5.1)
24.1 Powers of Attorney (included on the signature page hereof)
</TABLE>
<PAGE>
EXHIBIT 4.2
AMENDMENT
TO THE
FMC CORPORATION NON-QUALIFIED RETIREMENT AND THRIFT PLAN
The FMC Corporation Non-Qualified Retirement and Thrift Plan is amended
effective January 1, 1998, as follows:
Section 1.1. Add at the end of the section:
- -----------
Effective as of January 1, 1998, the Plan is also intended to allow such
employees to defer additional compensation as formerly provided under the
Deferred Compensation Plan of FMC Corporation, which plan is merged into
this Plan effective as of December 31, 1997.
Article VIII. Insert the following new article as Article VIII and designate
- ------------
Articles VIII through XI as Articles IX through XII:
Deferred Compensation
---------------------
Section 8.1. Deferred Compensation. A Participant may elect to defer,
---------------------
in the manner and at the time prescribed by the Committee, all or part of
(i) any base salary payable, (ii) any bonus payable pursuant to the FMC
Management Bonus Plan, (iii) any contingent cash component of a
Participant's compensation the payment of which the Committee has approved
to be deferred ("Deferrable Compensation"). The Company will credit any
Deferrable Compensation so deferred to a bookkeeping account (the "Deferred
Compensation Account") maintained on behalf of the Participant.
Section 8.2. Investment of Deferred Compensation. Each Participant who
-----------------------------------
defers compensation may designate from time to time, in accordance with
Section 6.1, that all or a portion of his Deferred Compensation Account be
deemed invested in one or more Permitted Investments. The applicable
provisions of Section 6.1 shall govern such investments as to receipt of
interest, dividends, and earnings and as to their disposition.
Section 8.3. Distribution of Deferred Compensation. Each Participant
-------------------------------------
shall at all times have a one hundred percent (100%) vested and
nonforfeitable interest in his Deferred Compensation Account. A Participant
may elect to receive Deferrable Compensation and all accretions thereto
over a number of years, not to exceed twenty, as selected by the
Participant, the first payment being made in the earlier of (i) the year
specified by the Participant, (ii) the year of the Participant's death, or
(iii) the year of the Participant's retirement. In the event of termination
of a Participant's employment for reasons other than death or retirement,
the distribution of the Participant's Deferred Compensation Account shall
be made within two years after such termination unless the Committee, in
its absolute discretion, provides for a different payment schedule not
longer than the schedule originally selected by the Participant. A
Participant may from time to time request the Committee to authorize an
emergency payment of amounts credit to his Deferred Compensation Account in
accordance with the terms of Section 9.2. Any distribution from the
Deferred Compensation Account shall be subject to Section 11.2 regarding
withholding for taxes.
FMC CORPORATION
By: /s/ Michael J. Callahan
_____________________________
Its: Executive Vice President and
Chief Financial Officer
____________________________
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF FMC CORPORATION]
December 29, 1998
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Re: Registration Statement on Form S-8 of FMC Corporation
(the "Registration Statement") registering $25,000,000 in
deferred compensation obligations
Ladies and Gentlemen:
I have acted as Associate General Counsel for FMC Corporation, a Delaware
corporation (the "Company"), in connection with the registration on Form S-8 of
the offer and sale of up to $25,000,000 of deferred compensation obligations
(the "Obligations"), which will represent unsecured obligations of the Company
issued under the FMC Corporation Non-Qualified Retirement and Thrift Plan, as
amended (the "Plan").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Securities Act of 1933, as
amended (the "Act").
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of:
(i) the Registration Statement, to be filed with the Securities and Exchange
Commission (the "Commission") under the Act; (ii) the Restated Certificate of
Incorporation of the Company, as currently in effect; (iii) the Restated By-Laws
of the Company, as currently in effect; and (iv) resolutions of the Board of
Directors of the Company relating to, among other things, the filing of the
Registration Statement and the approval of certain amendments to the Plan. I
have also examined such other documents as I have deemed necessary or
appropriate as a basis for the opinion set forth below.
In my examination, I have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authority of all documents
submitted to me as certified or photostatic copies, and the authenticity of the
originals of all documents. As to any facts material to this opinion which I did
not independently establish or verify, I have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
Based upon and subject to the foregoing, I am of the opinion that when
issued by the Company in the manner provided in the Plan, the Obligations will
be valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general principles of equity.
I hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement. In giving such consent, I do not concede
that I am an expert within the meaning of the Act or the rules and regulations
thereunder or that this consent is required by Section 7 of the Act.
Very truly yours,
/s/ Steven H. Shapiro
Steven H. Shapiro
Associate General Counsel
<PAGE>
EXHIBIT 23.1
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
FMC Corporation
We consent to the use of our report dated January 20, 1998, incorporated herein
by reference, with respect to the consolidated financial statements of FMC
Corporation and consolidated subsidiaries as of December 31, 1997 and 1996 and
for each of the years in the three-year period ended December 31, 1997, which
report is incorporated by reference in the December 31, 1997 annual report on
Form 10-K of FMC Corporation.
KPMG Peat Marwick LLP
Chicago, Illinois
December 28, 1998
