REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TOSCO CORPORATION
(Exact name of registrant as specified in its charter)
NEVADA 95-1865716
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(203) 977-1000
(Address of principal executive offices)
TOSCO CORPORATION
STORE SAVINGS PLAN
(FULL TITLE OF THE PLAN)
WILKES MCCLAVE, III
TOSCO CORPORATION
72 CUMMINGS POINT ROAD
STAMFORD, CONNECTICUT 06902
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(203) 977-1005
(TELEPHONE NUMBER, INCLUDING AREA CODE OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE FEE
Common Stock
$.75 par value . . . . 50,000 $35.125 $1,756,250 $518
shares
Interests in the Plan . (2) (3) (3) (3)
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(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c). Based upon the closing price for a share of
Common Stock of the Registrant on the New York Stock Exchange as
reported in the consolidated trading system.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(3) Pursuant to Rule 457(h)(2) under the Securities Act of 1933, no
separate fee is required to register plan interests.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The documents containing the information specified in
this Part I will be sent or given to employees as
specified by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Act"). Such
documents need not be filed with the Securities and
Exchange Commission (the "Commission") either as part
of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the
Act. These documents and the documents incorporated
by reference in the Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the
requirements of Section 10(a) of the Act. See Rule
428(a)(1) under the Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997;
(e) Current report on Form 8-K reporting on an event which occurred
March 31, 1997;
(f) Current report on Form 8-K reporting on an event which occurred
October 15, 1997; and
(g) Item 1 of the Registrant's Registration Statement on Form 8-A,
dated June 29, 1989, filed to register the Registrant's Common Stock, par value
$.75 per share (the "Common Stock"), pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby 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
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Articles of Incorporation of the Registrant provide that the
Registrant shall, to the fullest extent provided by the Nevada General
Corporation Law (the "Nevada GCL"), indemnify any and all persons whom it shall
have the power to indemnify under the Nevada GCL from and against any and all of
the expenses, liabilities or other matters referred to in or covered by the
Nevada GCL. The indemnification provided for in the Registrant's Restated
Articles of Incorporation shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested Directors, statute, rule or by common law or
otherwise.
The By-Laws of the Registrant also provide certain indemnification rights
to the Directors and officers of the Registrant.
The Registrant continues to maintain Directors and officers liability
insurance policies. The Registrant presently carries Directors and officers
liability coverage under a policy maintained with a wholly-owned subsidiary of
the Registrant engaged in the insurance business in Bermuda. In addition, the
Registrant carries Directors and officers liability coverage under policies
maintained with private unaffiliated insurance carriers. The insurance
subsidiary has deposited in trust the insurance premiums received by it from the
Registrant which will be used to pay losses which are covered by the insurance
policy issued by such subsidiary.
The Restated Articles of Incorporation of the Registrant include a
provision which eliminates the liability of Directors and officers to the
Registrant or its stockholders for damages for breaches of their fiduciary duty,
except for liability (i) for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (ii) for the payment of
dividends in violation of the provisions of the Nevada GCL which provide that
directors who, willfully or with gross negligence, permit the payment of a
dividend or the making of a distribution other than as permitted by the Nevada
GCL are jointly and severally liable for the lesser of the amount of the
dividend or the loss sustained by reason of the dividend or other distribution
to stockholders.
The Registrant has entered into indemnification agreements with its
Directors which provide them with certain indemnification rights.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
5* - Opinion of Stroock & Stroock & Lavan LLP.
23(a)* - Consent of Stroock & Stroock & Lavan LLP. Included in
Exhibit 5 to this Registration Statement.
23(b)* - Consent of Coopers & Lybrand, LLP.
24* - Power of Attorney (included on signature page).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(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;
(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 (1)(i) and (1)(ii) do not apply if the
registration Statement is on Form S-3 or Form S-8 and 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 the
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.
(4) If the Registrant is a foreign private issuer, to file a post-effective
amendment to the Registration Statement to include any financial statements
required by Rule 3-19 of Regulation S-X at the start of any delayed offering or
throughout a continuous offering.
The undersigned Registrant hereby 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
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 Securities Act
of 1933 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 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 Stamford, State of Connecticut, on the 29th day of
December, 1997.
TOSCO CORPORATION
(Registrant)
By:/S/THOMAS D. O'MALLEY
Thomas D. O'Malley
Chairman of the Board
of Directors and Chief
Executive Officer
POWER OF ATTORNEY
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 dates indicated. Each person whose signature appears below
hereby authorizes Thomas D. O'Malley, Jefferson F. Allen, and Wilkes McClave
III, and any of them acting individually, with full power of substitution to
file one or more amendments, including Post-Effective Amendments, to this
Registration Statement, which Amendments may make such changes as any of them
deems appropriate, and each person whose signature appears below, individually
and in each capacity stated below, hereby appoints Thomas D. O'Malley, Jefferson
F. Allen, and Wilkes McClave III, and any of them acting individually, with full
power of substitution, as Attorney-in-Fact to execute his name and on his behalf
to file any such Amendments to this Registration Statement.
SIGNATURE TITLE DATE
/S/THOMAS D. O'MALLEY Chairman of the December 29, 1997
- ------------------------ Board of Directors
Thomas D. O'Malley and Chief Executive Officer
/S/JEFFERSON F. ALLEN President, Principal December 29, 1997
- ------------------------ Financial Officer
Jefferson F. Allen and Director
/S/ROBERT I. SANTO Principal Accounting December 29, 1997
- ------------------------ Officer
Robert I. Santo
/S/PATRICK M. DE BARROS Director December 29, 1997
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Patrick M. de Barros
/S/WAYNE A. BUDD Director December 29, 1997
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Wayne A. Budd
/S/HOUSTON I. FLOURNOY Director December 29, 1997
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Houston I. Flournoy
Director December _, 1997
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Edmund A. Hajim
/S/JOSEPH P. INGRASSIA Director December 29, 1997
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Joseph P. Ingrassia
Director December _, 1997
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Charles J. Luellen
- ------------------------- Director December __, 1997
Eija Malmivirta
/S/MARK R. MULVOY Director December 29, 1997
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Mark R. Mulvoy
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EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
5* Opinion of Stroock & Stroock & Lavan LLP.
23(a)* Consent of Stroock & Stroock & Lavan LLP.
Included in Exhibit 5 to this
Registration Statement
23(b)* Consent of Coopers & Lybrand, LLP.
24* Power of Attorney (included on signature page).
* Filed herewith.
Exhibit 5
December 29, 1997
Tosco Corporation
72 Cummings Point Road
Stamford, Connecticut 06902
Gentlemen:
We have acted as counsel to Tosco Corporation, a Nevada corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the proposed issuance of up to 50,000 shares (the
"Shares") of the Common Stock, $0.75 par value (the "Common Stock") of the
Company, pursuant to the Tosco Corporation Store Savings Plan (the "Plans").
As such counsel, we have examined copies of the Certificate of Incorporation and
Bylaws of the Company, each as amended to the date hereof, the Registration
Statement, the Plan and originals or copies of such other corporate minutes,
records, agreements and other instruments of the Company, certificates of public
officials and other documents and have made such examinations of law, as we have
deemed necessary to form the basis for the opinion hereinafter expressed. In our
examination of such materials, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all copies submitted to us. As to
various questions of fact material to such opinion, we have relied, to the
extent we deemed appropriate, upon representations, statements and certificates
of officers and representatives of the Company and others.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we do not purport to be experts on, or to
express any opinion herein concerning, any law other than the laws of the State
of New York, the General Corporation Law of the State of Nevada or the federal
laws of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the Shares,
when issued under the circumstances contemplated in the Registration Statement
and the Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7 of
the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN LLP
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Tosco Corporation on Form S-8 (File No. 333-__________) of our report dated
February 28, 1997, on our audits of the consolidated financial statements and
financial statement schedule of Tosco Corporation and subsidiaries as of
December 31, 1996 and 1995, and for the years ended December 31, 1996, 1995 and
1994, which report is included in this Annual Report on Form 10-K.
Coopers & Lybrand L.L.P.
Phoenix, Arizona
December 22, 1997
