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As filed with the Securities and Exchange Commission on June 30, 1994
Registration No. 2-78875
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
POSTEFFECTIVE AMENDMENT NO. 5
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
____________________
NCH CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 75-0457200
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2727 Chemsearch Blvd.
Irving, Texas 75062
(Address of Principal Executive Offices)
1980 NONQUALIFIED STOCK OPTION PLAN
(Full Title of Plan)
____________________
Copies to:
IRVIN L. LEVY ROBERT L. BLUMENTHAL, Esq.
NCH Corporation ALEXANDRA D. WADDELL, Esq.
2727 Chemsearch Blvd. Carrington, Coleman, Sloman
Irving, Texas 75015 & Blumenthal, L.L.P.
(214) 438-0211 200 Crescent Court, Suite 1500
Dallas, Texas 75201
(Name, Address, and Telephone Number, (214) 855-3000
including area code, of Agent for Service)
____________________
Pursuant to Rule 429, this amendment shall also be deemed posteffective
Amendment No. 2 to Registration Statement No. 2-98448, which was the
second posteffective amendment to this registration statement. The
amendments filed on May 12, 1989, and August 2, 1990, under Registration
No. 2-78875 were the third and fourth posteffective amendments,
respectively. This amendment removes from registration securities
authorized for issuance under the 1981 Incentive Stock Option Plan, which
has expired.
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PART II
Item 3. Incorporation of Documents by Reference
The following documents are incorporated in this Registration
Statement by reference:
1. The Registrant's latest annual report filed pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934;
2. All other reports that the Registrant has filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 since the
end of the fiscal year covered by the Registrant's latest annual report;
and
3. The description of the Registrant's common stock set forth in the
Registrant's Registration Statement, No. 2-23712, filed pursuant to the
Securities Act of 1933, effective September 28, 1965, and incorporated
by reference in Form 8-A filed in 1966 with the Securities and Exchange
Commission pursuant to Section 12 of the Securities Exchange Act of 1934,
and any reports or amendments to the foregoing filed with the Securities
and Exchange Commission for the purpose of updating such description.
All documents that the Registrant files with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934, subsequent to the date of this
Registration Statement and before the Registrant files a posteffective
amendment indicating that all securities offered pursuant to the
Registrant's 1981 Incentive Stock Option Plan and 1980 Nonqualified Stock
Option Plan have been sold or deregistering all such securities then
remaining unsold, shall be deemed to be incorporated by reference in and
to be a part of this Registration Statement from the date of filing such
documents.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporation Law ("DGCL"), Title 8 Section 145,
provides that a corporation may indemnify a person who was or is an
officer, director, agent, or employee, or who serves at the corporation's
request as a director, officer, employee, or agent, of another
corporation, partnership, trust, joint venture, or other enterprise
("nominee"), who was, is, or is threatened to be named a defendant in a
legal proceeding by virtue of such person's position in the corporation
or nominee, only if it is determined that the person acted in good faith
and reasonably believed that the conduct was in or at least not opposed
to the corporation's best interest, and, in the case of a criminal
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proceeding, the person had no reasonable cause to believe the conduct was
unlawful. An officer, director, agent, employee, or nominee may not be
indemnified, however, for obligations resulting from a proceeding in
which the person is found liable to the corporation unless and only to
the extent that a court determines that in view of all the circumstances
of the case the person is fairly and reasonably entitled to
indemnification. A person may be indemnified within the above
limitations against judgments, penalties, fines, settlements, and
reasonable expenses actually incurred. The DGCL further provides that
a corporation must indemnify a director, officer, employee, or agent
against reasonable expenses incurred in connection with a proceeding in
which the person is a party because of the person's corporate position,
if the person was successful, on the merits or otherwise, in the defense
of the proceeding. The statute also provides that under certain
circumstances, a corporation may advance expenses to such person.
Section 145 of the DGCL also permits a corporation to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the corporation against any liability
asserted against and incurred by the person in such capacity, or arising
out of his or her status as such a person, regardless of whether the DGCL
otherwise empowers the corporation to indemnify that person against such
liability.
The Registrant's Restated Certificate of Incorporation provides that
the Registrant may indemnify any person who is or was an officer,
director, or employee of the Registrant or who holds or held such a
position in another corporation at the request of the Registrant or for
expenses incurred in connection with legal proceedings in which the
person is made a party by reason of being or having been such a director,
officer, or employee.
The Registrant's Bylaws further provide that the Registrant will
indemnify any person who is or was a director of the Registrant or a
director, officer, employee, or agent of another corporation or entity
at the Registrant's request, against all expenses incurred in connection
with any proceeding to which such person is a party by reason of such
position, provided that if the proceeding was initiated by the person
seeking indemnification, such proceeding must have been authorized by the
Registrant's board of directors.
The Registrant has entered into indemnification agreements with each
of its directors. The indemnification agreements provide that the
Registrant will hold its directors harmless and indemnify them the
fullest extent permitted by either of Section 145 of the DGCL or the
Registrant's Bylaws. The indemnification agreements further provide that
the Registrant will indemnify its directors against expenses, judgments,
fines, and amounts paid in settlement incurred in connection with legal
proceedings by reason of being or having been a director of the
Registrant; provided, however, that the Registrant will pay no
indemnification for losses already covered by other indemnification
provisions or insurance, illegal remuneration, certain securities laws
violations, knowingly fraudulent, dishonest, or willful misconduct, or
if indemnification otherwise is determined to be illegal.
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The Registrant has procured insurance to cover the indemnification
described above.
Section 102(b)(7) of the DGCL provides that the certificate of
incorporation of a corporation governed by such act may contain:
A provision eliminating or limiting the personal liability of
a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that
such provision shall not eliminate or limit the liability of a
director: (i) For any breach of the director's duty of loyalty to
the corporation or its stockholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Section 174 of this title
[concerning unlawful dividend payments, stock purchases, or stock
redemptions]; or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall
eliminate or limit the liability of a director for any act or
omission occurring prior to the date when such provision becomes
effective.
The Registrant's Restated Certificate of Incorporation eliminates the
personal liability of the Registrant's directors to the extent permitted
by Section 102(b)(7) of the DGCL.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
The following documents are filed as exhibits to this Registration
Statement. Certain documents previously filed with the Securities and
Exchange Commission are incorporated herein by reference.
Exhibit No.
3.1 * -- Restated Certificate of Incorporation
3.2 * -- Bylaws, as amended
5 + -- Opinion of Carrington, Coleman, Sloman & Blumenthal, L.L.P.
10.1 * -- Form of 1980 Nonqualified Stock Option Plan, as amended
10.2 * -- Form of Nonqualified Stock Option Agreement
23 -- Consent of KPMG Peat Marwick
_____________________
* Incorporated herein by reference to the exhibits with the same exhibit
number and designation in the Registrant's report on
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Form 10-K for the fiscal year ended April 30, 1987, filed with the
Securities and Exchange Commission.
+ Incorporated herein by reference to the exhibits to the Registrant's
Registration Statement No. 2-78875 on Form S-8, filed with the Securities
and Exchange Commission on August 17, 1982.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
posteffective amendment to this Registration Statement 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;
2. That, for the purpose of determining any liability under the Securities
Act of 1933, each such posteffective 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 posteffective amendment any
of the securities being registered that remain unsold at the termination
of the offering;
4. 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 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
therein, 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 provisions described in Item 6 of this
Registration Statement, 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 Securities Act of 1933 and is,
therefore, unenforceable. If 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 of 1933 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, 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 Irving, State of Texas, on June 28, 1994.
NCH CORPORATION
By: /s/ Irvin L. Levy
IRVIN L. LEVY, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Lester A. Levy Director & Chairman June 28, 1994
LESTER A. LEVY of the Board
Milton P. Levy, Jr.* Director & Chairman June 28, 1994
MILTON P. LEVY, JR. of the Executive Committee
/s/ Irvin L. Levy Director & Chief June 28, 1994
IRVIN L. LEVY Executive Officer
Tom Hetzer* Vice President - Finance June 28, 1994
TOM HETZER (Principal Financial and
Accounting Officer)
/s/ Robert L. Blumenthal Director June 28, 1994
ROBERT L. BLUMENTHAL
Rawles Fulgham* Director June 28, 1994
RAWLES FULGHAM
Jerrold M. Trim* Director June 28, 1994
JERROLD M. TRIM
Thomas B. Walker, Jr.* Director June 28, 1994
THOMAS B. WALKER, JR.
*By: /s/ Lester A. Levy
Lester A. Levy,
as Attorney-in-Fact
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INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
3.1 * -- Restated Certificate of
Incorporation
3.2 * -- Bylaws, as amended
5 + -- Opinion of Carrington, Coleman,
Sloman & Blumenthal, L.L.P.
10.1 * -- Form of 1980 Nonqualified Stock
Option Plan, as amended
10.2 * -- Form of Nonqualified Stock Option
Agreement
23 -- Consent of KPMG Peat Marwick
_____________________
* Incorporated herein by reference to the exhibits
with the same exhibit number and designation in
the Registrant's report on Form 10-K for the
fiscal year ended April 30, 1987, filed with the
Securities and Exchange Commission.
+ Incorporated herein by reference to the exhibits
to the Registrant's Registration Statement
No. 2-78875 on Form S-8, filed with the Securities
and Exchange Commission on August 17, 1982.
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EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
NCH Corporation:
We consent to the use of our reports incorporated
herein by reference in the registration statement.
/s/ KPMG Peat Marwick
KPMG Peat Marwick
Dallas, Texas
June 28, 1994
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