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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 23, 1999.
REGISTRATION NO. 333-85099
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933*
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KIMBERLY-CLARK CORPORATION
(Exact Name of Registrant as specified in its Charter)
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<TABLE>
<S> <C> <C>
DELAWARE 2621 9-0394230
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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BALLARD MEDICAL PRODUCTS 1997 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1996 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1995 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1994 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1993 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1992 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1991 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1990 INCENTIVE STOCK OPTION PLAN
BALLARD MEDICAL PRODUCTS 1988 INCENTIVE STOCK OPTION PLAN
-----------------------------
O. GEORGE EVERBACH
SENIOR VICE PRESIDENT -- LAW AND GOVERNMENT AFFAIRS
KIMBERLY-CLARK CORPORATION
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
GINA E. BETTS
LOCKE LIDDELL & SAPP LLP
2200 ROSS AVENUE, SUITE 2200
DALLAS, TEXAS 75201
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $1.25 par value per share 544,508 (1) (2) $ (2) $ (2)
- -----------------------------------------------------------------------------------------------------------------------
Preferred Stock Purchase Rights (3) 544,508 (1) N/A N/A N/A
=======================================================================================================================
</TABLE>
(1) The number of shares to be registered is based upon an estimate of the
maximum number of shares of common stock of Kimberly-Clark Corporation that
were issuable under the Ballard Medical Products stock option plans listed
above.
(2) The proposed maximum offering price was calculated and the fee was
previously paid in connection with Kimberly-Clark's Registration Statement
on Form S-4 (No. 333-85099), declared effective on August 17, 1999.
(3) The preferred stock purchase rights of Kimberly-Clark initially are
attached to and trade with the shares of Kimberly-Clark common stock being
registered hereby. The value attributable to such preferred stock purchase
rights, if any, is reflected in the market price of Kimberly-Clark common
stock.
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*Filed as Post-Effective Amendment No. 1 on Form S-8 to such Form S-4 pursuant
to the procedure described herein. See "Explanatory Note."
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EXPLANATORY NOTE
Kimberly-Clark hereby amends its Registration Statement on Form S-4
(Registration No. 333-85099) by filing this Post-Effective Amendment No. 1 on
Form S-8 to Form S-4 relating to the sale of up to 544,508 shares of
Kimberly-Clark common stock, $1.25 par value per share, issuable pursuant to the
Ballard Medical Products 1997 Incentive Stock Option Plan, 1996 Incentive Stock
Option Plan, 1995 Incentive Stock Option Plan, 1994 Incentive Stock Option Plan,
1993 Incentive Stock Option Plan, 1992 Incentive Stock Option Plan, 1991
Incentive Stock Option Plan, 1990 Incentive Stock Option Plan and 1988 Incentive
Stock Option Plan. On September 23, 1999, Jazz Acquisition Corp., a Utah
corporation and a wholly-owned subsidiary of Kimberly-Clark, merged with and
into Ballard. Pursuant to the Agreement and Plan of Merger between
Kimberly-Clark, Jazz Acquisition Corp. and Ballard, dated as of December 23,
1998, Kimberly-Clark substituted options to purchase shares of Kimberly-Clark
common stock upon the same terms, conditions and restrictions as were applicable
to the Ballard options immediately prior to the merger.
This Post-Effective Amendment relates to an aggregate of up to 544,508
shares of Kimberly-Clark common stock issuable pursuant to the terms of the
Ballard stock option plans. The designation of this Post-Effective Amendment No.
1 as Registration No. 333-85099 denotes that this Post-Effective Amendment
relates only to the Kimberly-Clark common stock that is issuable pursuant to the
plans and that this is the first Post-Effective Amendment to the Form S-4.
The information required by Part I of Form S-8 will be included in the
documents sent or given to participants in the plans. Such documents are not
required to be and are not filed with the SEC pursuant to Rule 424 of the
Securities Act of 1933, as amended, and the Note to Part I of Form S-8. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by Kimberly-Clark
with the SEC, are incorporated by reference and made a part hereof:
1. The Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
2. The Annual Report on Form 10-K/A for the fiscal year ended December 31,
1998;
3. The Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
4. The Quarterly Report on Form 10-Q/A for the quarter ended March 31,
1999;
5. The Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
6. The Current Reports on Form 8-K dated January 26, 1999, March 12, 1999,
March 16, 1999, and July 22, 1999; and
7. All other reports filed by Kimberly-Clark pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the end
of the fiscal year ended December 31, 1998.
All documents subsequently filed by Kimberly-Clark 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 herein and to be a part hereof from the date of
filing of 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
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Kimberly-Clark common stock being offered
hereby was passed on for Kimberly-Clark by O. George Everbach, Senior Vice
President-Law and Government Affairs of Kimberly-Clark. Mr. Everbach owned
59,648 shares of Kimberly-Clark common stock as of September 15, 1999, held
options to acquire 328,718 shares of such common stock, of which 205,917 options
are currently exercisable or will become exercisable in 60 days from such date,
and, as of September 3, 1999, 16,745.21 shares of such common stock were
attributable to his account under the Kimberly-Clark Corporation Salaried
Employees Incentive Investment Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Kimberly-Clark by-laws provide, among other things, that Kimberly-Clark
shall (1) 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 Kimberly-Clark, by reason of the fact that he is or was a
director or officer of Kimberly-Clark, or is or was serving at the request of
Kimberly-Clark as a director or officer of another corporation, or in the case
of an officer or director of Kimberly-Clark is or was serving as an employee or
agent of a partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
Kimberly-Clark, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; and (2) 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
Kimberly-Clark to procure a judgment in its favor by reason of the fact that he
is or was a director or officer of Kimberly-Clark, or is or was serving at the
request of Kimberly-Clark as a director or officer of another corporation, or in
the case of an officer or director of Kimberly-Clark is or was serving as an
employee or agent of a partnership, joint venture, trust or other enterprise
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of
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Kimberly-Clark and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to Kimberly-Clark unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery or such other court
shall deem proper. The Kimberly-Clark by-laws further provide that the
indemnification provided therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled.
Section 145 of the Delaware General Corporation Law authorizes
indemnification by Kimberly-Clark of directors and officers under the
circumstances provided in the provisions of the Kimberly-Clark by-laws described
above, and requires such indemnification for expenses actually and reasonably
incurred to the extent a director or officer is successful in the defense of any
action or any claim, issue or matter therein.
Kimberly-Clark has purchased insurance which purports to insure
Kimberly-Clark against certain costs of indemnification which may be incurred by
it pursuant to the Kimberly-Clark by-laws and to insure the officers and
directors of Kimberly-Clark, and its subsidiary companies, against certain
liabilities incurred by them in the discharge of their functions as such
officers and directors except for liabilities resulting from their own
malfeasance.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
(a) The following is a list of Exhibits included as part of this
Registration Statement. Kimberly-Clark agrees to supply supplementally a copy of
any omitted schedule to the SEC upon request. Items marked with an asterisk are
filed herewith.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
3.1 Restated Certificate of Incorporation of Kimberly-Clark dated
June 21, 1997, is hereby incorporated by reference to Exhibit No.
(3)(a) of Kimberly-Clark's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997.
3.2 By-Laws of Kimberly-Clark, as amended November 22, 1996, are
hereby incorporated by reference to Exhibit No. 4.2 to the
Registration Statement on Form S-8 filed with the SEC on December
6, 1996 (Registration No. 33-17367).
3.3 Rights Agreement dated as of June 21, 1988, as amended and
restated as of June 8, 1995, between Kimberly-Clark and The First
National Bank of Boston (now known as Boston EquiServe), as
Rights Agent, is hereby incorporated by reference to Exhibit No.
1 to the Registration Statement on Form 8-A/A of Kimberly-Clark
filed with the SEC on June 13, 1995.
3.4 Certificate of Adjustment dated March 7, 1997, filed by
Kimberly-Clark with The First National Bank of Boston (now known
as Boston EquiServe), as Rights Agent, is hereby incorporated by
reference to Exhibit No. 2 to the Registration Statement on Form
8-A/A of Kimberly-Clark filed with the SEC on March 17, 1997.
4.1 The instruments defining the rights of holders of long-term debt
securities of Kimberly-Clark and its subsidiaries are omitted
pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K.
Kimberly-Clark hereby agrees to furnish copies of these
instruments to the SEC upon request.
5.1 Opinion of O. George Everbach, Senior Vice President - Law and
Government Affairs of Kimberly-Clark, is hereby incorporated by
reference to Exhibit No. 5.1 to the Registration Statement on
Form S-4 of Kimberly-Clark filed with the SEC on August 13, 1999
(Registration No. 333-85099).
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*23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of O. George Everbach (included in Exhibit 5.1 to this
Registration Statement).
24.1 Powers of Attorney, are hereby incorporated by reference to
Exhibit No. 24.1 to the Registration Statement on Form S-4 of
Kimberly-Clark filed with the SEC on August 13, 1999
(Registration No. 333-85099).
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*Filed herewith.
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 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.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar amount of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated offering
range may be reflected in the form of prospectus
filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
(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
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the SEC 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 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 (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 the 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 SEC 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Irving,
State of Texas, on September 23, 1999.
KIMBERLY-CLARK CORPORATION
By: /s/ Wayne R. Sanders
----------------------------
Wayne R. Sanders
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ Wayne R. Sanders Chairman of the Board and Chief Executive September 23, 1999
- --------------------------------------------- Officer and Director (principal executive
Wayne R. Sanders officer)
/s/ John W. Donehower Senior Vice President and Chief Financial September 23, 1999
- --------------------------------------------- Officer (principal financial officer)
John W. Donehower
/s/ Randy J. Vest Vice President and Controller (principal September 23, 1999
- --------------------------------------------- accounting officer)
Randy J. Vest
</TABLE>
DIRECTORS
<TABLE>
<CAPTION>
Signature Signature
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<S> <C>
* *
- ------------------------------------------------------- ---------------------------------------------------------
John F. Bergstrom Pastora San Juan Cafferty
* *
- ------------------------------------------------------- ---------------------------------------------------------
Paul J. Collins Robert W. Decherd
* *
- ------------------------------------------------------- ---------------------------------------------------------
William O. Fifield Claudio X. Gonzalez
* *
- ------------------------------------------------------- ---------------------------------------------------------
Louis E. Levy Frank A. McPherson
* *
- ------------------------------------------------------- ---------------------------------------------------------
Linda Johnson Rice Wolfgang R. Schmitt
*
- ------------------------------------------------------- ---------------------------------------------------------
Randall L. Tobias
September 23, 1999
*By: /s/ O. George Everbach
--------------------------------------------------
O. George Everbach
Attorney-in-Fact
</TABLE>
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation of Kimberly-Clark dated
June 21, 1997, is hereby incorporated by reference to Exhibit No.
(3)(a) of Kimberly-Clark's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997.
3.2 By-Laws of Kimberly-Clark, as amended November 22, 1996, are
hereby incorporated by reference to Exhibit No. 4.2 to the
Registration Statement on Form S-8 filed with the SEC on December
6, 1996 (Registration No. 33-17367).
3.3 Rights Agreement dated as of June 21, 1988, as amended and
restated as of June 8, 1995, between Kimberly-Clark and The First
National Bank of Boston (now known as Boston EquiServe), as
Rights Agent, is hereby incorporated by reference to Exhibit No.
1 to the Registration Statement on Form 8-A/A of Kimberly-Clark
filed with the SEC on June 13, 1995.
3.4 Certificate of Adjustment dated March 7, 1997, filed by
Kimberly-Clark with The First National Bank of Boston (now known
as Boston EquiServe), as Rights Agent, is hereby incorporated by
reference to Exhibit No. 2 to the Registration Statement on Form
8-A/A of Kimberly-Clark filed with the SEC on March 17, 1997.
4.1 The instruments defining the rights of holders of long-term debt
securities of Kimberly-Clark and its subsidiaries are omitted
pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K.
Kimberly-Clark hereby agrees to furnish copies of these
instruments to the SEC upon request.
5.1 Opinion of O. George Everbach, Senior Vice President - Law and
Government Affairs of Kimberly-Clark, is hereby incorporated by
reference to Exhibit No. 5.1 to the Registration Statement on
Form S-4 of Kimberly-Clark filed with the SEC on August 13, 1999
(Registration No. 333-85099).
*23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of O. George Everbach (included in Exhibit 5.1 to this
Registration Statement).
24.1 Powers of Attorney, are hereby incorporated by reference to
Exhibit No. 24.1 to the Registration Statement on Form S-4 of
Kimberly-Clark filed with the SEC on August 13, 1999
(Registration No. 333-85099).
</TABLE>
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*Filed herewith.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 on Form S-8 to Registration Statement No. 333-85099 of Kimberly-Clark
Corporation on Form S-4 of our report dated January 25, 1999, July 23, 1999, as
to Note 17 (which expresses an unqualified opinion and includes an explanatory
paragraph relating to the restatement described in Note 17), appearing in the
Annual Report on Form 10-K/A of Kimberly-Clark Corporation for the year ended
December 31, 1998.
DELOITTE & TOUCHE LLP
Dallas, Texas
September 23, 1999
