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As filed with the Securities and Exchange Commission on February 3, 1997
Registration No. 333-_____________________
======================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------------------------------
FIRST BRANDS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 06-1171404
(State of Incorporation) (IRS Employer Identification No.)
83 WOOSTER HEIGHTS ROAD
P.O. BOX 1911
DANBURY, CONNECTICUT 06813-1911
(Address of principal executive offices)
FIRST BRANDS CORPORATION
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full Title of Plan)
EINAR M. ROD, ESQ.
General Counsel
FIRST BRANDS CORPORATION
83 Wooster Heights Road
P.O. Box 1911
Danbury, CT 06813-1911
(203) 731-2305
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered per Share Offering Price Registation Fee
------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 120,000 shs. $ 25.75(1) $3,090,000(1) $ 937.00
$0.01 Par Value,
and related
Preferred Stock
Purchase Rights
====================================================================================
(1) Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h). The fee with respect to the 120,000 shares of the Common Stock
which may be offered and sold under the First Brands Corporation Non-Employee
Directors Stock Option Plan is calculated on the basis of the average of the
high and low prices for the Registrant's Common Stock reported on the New York
Stock Exchange Composite Tape on January 30, 1997.
</TABLE>
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PART I
The documents containing the information concerning the First Brands
Corporation Non-Employee Directors Stock Option Plan (the "Plan") of First
Brands Corporation, a Delaware corporation, specified in Part 1 of the Form S-8
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"), are not being filed as part of this Registration Statement in
accordance with the Note to Part I of Form S-8 Registration Statement but will
be sent to eligible employees under the Plan in accordance with Rule 428 under
the Securities Act.
1
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by First Brands Corporation, a Delaware
corporation (the "Corporation"), with the Securities and Exchange Commission
(the "Commission") are incorporated in this Registration Statement by reference:
1. The Corporation's Annual Report on Form 10-K for the fiscal
year ended June 30, 1996 (the "1996 10-K");
2. The Corporation's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996;
3. The description of the Corporation's Common Stock, $0.01 par
value (the "Common Stock"), contained in its Registration Statement on Form 8-A,
effective as of December 11, 1989, filed under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the description of
the Corporation's Preferred Stock Purchase Rights contained in its Registration
Statement on Form 8-A dated March 22, 1996, including all amendments and reports
updating such descriptions.
All documents subsequently filed by the Corporation with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
after the date of this Registration Statement but prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each document
incorporated by reference into this Registration Statement shall be deemed to be
a part of this Registration Statement from the date of the filing of such
document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into this Registration Statement or by any document which
constitutes part of the prospectus relating to the Plan meeting the requirements
of Section 10(a) of the Securities Act.
EXPERTS
The consolidated financial statements and schedules of First
Brands Corporation and subsidiaries as of June 30, 1996 and June 30, 1995 and
for each of the years in the three year period ended June 30, 1996, included in
the 1996 10-K, have been audited by KPMG Peat Marwick LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference.
Such consolidated financial statements and schedules are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in
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accounting and auditing.
With respect to the unaudited condensed consolidated interim
financial information of the Corporation for the quarter ended September 30,
1996, incorporated by reference herein, KPMG Peat Marwick LLP has reported that
they have applied limited procedures in accordance with professional standards
for a review of such information. However, their separate report included in
First Brands Corporation's quarterly report on Form 10-Q for the quarter ended
September 30, 1996, incorporated by reference herein, states that they did not
audit and they do not express an opinion on that condensed consolidated interim
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted in light of the limited nature of the
review procedures applied. KPMG Peat Marwick LLP is not subject to the liability
provisions of Section 11 of the Securities Act for their report on the unaudited
condensed consolidated interim financial information because such report is not
considered a "report" or a "part" of the Registration Statement prepared or
certified by the accountant within the meaning of Sections 7 and 11 of the
Securities Act.
The financial statements incorporated herein by reference to all
documents subsequently filed by the Corporation pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration
Statement but 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, are or will
be so incorporated in reliance upon the reports of KPMG Peat Marwick LLP, and
any other independent public accountants, relating to such financial
information, and upon the authority of such independent public accountants as
experts in accounting and auditing in giving such reports to the extent that the
particular firm has audited such financial statements and consented to the use
of their reports thereon.
ITEM 4. DESCRIPTION OF SECURITIES
The securities to be offered under this Registration Statement
are registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the securities to which this Registration
Statement relates has been passed upon for the Corporation by Einar M. Rod,
General Counsel of the Corporation. Mr. Rod is paid a salary by the Corporation,
participates in benefit plans of the Corporation and owns directly or indirectly
thirty six (36) shares of the Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation's by-laws provide for indemnification by the
Corporation of its directors and officers to the full extent permitted by the
General Corporation Law of the State of Delaware (the "Delaware Law"). The
Corporation is empowered by Section 145 of the Delaware Law, subject to the
procedures and limitations stated therein, to indemnify any person against
expenses (including attorneys' fees), judgements, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending or completed action, suit or proceeding in which such person
was or is made a party by reason of his being or having been a director,
officer, employee or agent of the Corporation, 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, if he
had no reasonable cause to believe his conduct was unlawful. The statute
provides that indemnification pursuant to its provisions is not exclusive of
other rights of indemnification to which a person may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
The Corporation maintains a liability and indemnification
policy covering officers and directors of the Corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following Exhibits are filed herewith as part
of this Registration Statement:
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<S> <C>
Exhibit 4(a)* Restated Certificate of Incorporation
of the Corporation, as amended to November 6, 1996.
Exhibit 4(b) By-Laws of the Corporation, as amended to
January 20, 1995. Incorporated by reference to
Exhibit 3.2 to the Corporation's Annual Report on
Form 10-K for the fiscal year ended June 30, 1995
(Commission File No. 1-10395).
Exhibit 4(c) Indenture between the Corporation and United
States Trust Company of New York, dated as of March
1, 1992, relating to the 9 1/8% Senior Subordinated
Notes due 1999. Incorporated by reference to
Exhibit 4.1 to the Corporation's Annual Report on
Form 10-K for the fiscal year ended June 30, 1992
(Commission File No. 1-10395).
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Exhibit 4(d) Specimen of 9 1/8% Senior Subordinated Note.
Incorporated by reference to Exhibit 4.2 to the
Corporation's Annual Report on Form 10-K for the
fiscal year ended June 30, 1992 (Commission File
No. 1-10395).
Exhibit 4(e) Rights Agreement, dated as of March 22, 1996,
between the Corporation and Continental Stock
Transfer & Trust Company, as Rights Agent,
including the form of Certificate of Designation,
Preferences and Rights of Junior Participating
Preferred Stock, Series A., attached thereto as
Exhibit A, the form of Rights Certificate attached
thereto as Exhibit B and the Summary of Rights
attached thereto as Exhibit C. Incorporated by
reference to Exhibit 1.1 to the Corporation's
Registration Statement on Form 8-A dated March 22,
1996.
Exhibit 5* Opinion of Einar M. Rod, General Counsel of the
Corporation, as to the legality of the securities
being registered.
Exhibit 15 Letter re unaudited interim financial information
of KPMG Peat Marwick LLP (included in Consent of
KPMG Peat Marwick LLP filed as Exhibit 23(a)).
Exhibit 23(a)* Consent of KPMG Peat Marwick LLP.
Exhibit 23(b) Consent of Einar M. Rod, General Counsel of
the Corporation (included in his opinion filed as
Exhibit 5).
Exhibit 24 Power of Attorney (included on the signature page
to this Registration Statement).
Exhibit 99 First Brands Corporation Non-Employee Directors
Stock Option Plan. Incorporated by reference to
Exhibit A to the Definitive Proxy Statement for
Annual Meeting of Stockholders, filed by the
Corporation on September 26, 1995 (Commission File
No. 1-10395).
</TABLE>
* Filed herewith
ITEM 9. UNDERTAKINGS
(a) The Corporation 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;
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(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 (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 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 Corporation hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Corporation's annual
report pursuant to section 13(a) or 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 that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Corporation pursuant to the foregoing provisions, or otherwise, the
Corporation has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in that Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Corporation of expenses incurred
or paid by a director, officer or controlling person of the Corporation 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 Corporation 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 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 Danbury, State of Connecticut, on January 21,
1997.
FIRST BRANDS CORPORATION
By /s/ Donald A. DeSantis
____________________________
Donald A. DeSantis
Senior Vice President, Chief Financial
Officer and Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of the Corporation hereby constitutes and appoints Donald A.
DeSantis, William V. Stephenson and Einar M. Rod, and each of them, his true and
lawful attorneys-in-fact and agents, for him and in his name, place and stead,
in any and all capacities, to sign one or more amendments to this Registration
Statement on Form S-8 under the Securities Act, including post-effective
amendments and other related documents, and to file the same with the Commission
under said Act, hereby granting power and authority to do and perform any and
all acts and things requisite and necessary to be done in and about the
premises, as fully as 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 may lawfully do or cause to be done by virtue hereof.
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 shown and on the dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William V. Stephenson Chairman, President, Chief Executive Officer and January 24, 1997
- ----------------------------- Director (Principal Executive Officer)
William V. Stephenson
/s/ Alfred E. Dudley Director January 24, 1997
- -----------------------------
Alfred E. Dudley
/s/ James R. McManus Director January 24, 1997
- -----------------------------
James R. McManus
/s/ James R. Maher
- ------------------------------ Director January 24, 1997
James R. Maher
/s/ Dwight C. Minton
- ------------------------------ Director January 24, 1997
Dwight C. Minton
/s/ Denis Newman
- ------------------------------ Director January 24, 1997
Denis Newman
/s/ Ervin R. Shames
- ------------------------------ Director January 24, 1997
Ervin R. Shames
/s/ Robert G. Tobin
- ------------------------------ Director January 24, 1997
Robert G. Tobin
/s/ Thomas H. Rowland
- ------------------------------ Executive Vice President and Director January 24, 1997
Thomas H. Rowland
/s/ Donald A. DeSantis
- ------------------------------ Senior Vice President, Chief Financial Officer January 24, 1997
Donald A. DeSantis and Treasurer (Principal Financial and
Accounting Officer)
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ---------- ----------------------
Exhibit 4(a)* Restated Certificate of Incorporation of the
Corporation, as amended to November 6, 1996.
Exhibit 4(b) By-Laws of the Corporation, as amended to January 20,
1995. Incorporated by reference to Exhibit 3.2 the
Corporation's Annual Report on Form 10-K for the fiscal
year ended June 30, 1995 (Commission File No. 1-10395).
Exhibit 4(c) Indenture between the Corporation and United States
Trust Company of New York, dated as of March 1, 1992,
relating to the 9 1/8% Senior Subordinated Notes due 1999.
Incorporated by reference to Exhibit 4.1 to the
Corporation's Annual Report on Form 10-K for the fiscal
year ended June 30, 1992 (Commission File No. 1-10395).
Exhibit 4(d) Specimen of 9 1/8% Senior Subordinated Note.
Incorporated by reference to Exhibit 4.2 to the
Corporation's Annual Report on Form 10-K for the fiscal
year ended June 30, 1992 (Commission File No. 1-10395).
Exhibit 4(e) Rights Agreement, dated as of March 22, 1996, between the
Corporation and Continental Stock Transfer & Trust
Company, as Rights Agent, including the form of
Certificate of Designation, Preferences and Rights of
Junior Participating Preferred Stock, Series A., attached
thereto as Exhibit A, the form of Rights Certificate
attached thereto as Exhibit B and the Summary of Rights
attached thereto as Exhibit C. Incorporated by reference
to Exhibit 1.1 to the Corporation's Registration Statement
on Form 8-A dated March 22, 1996.
Exhibit 5* Opinion of Einar M. Rod, General Counsel of the
Corporation, as to the legality of the securities being
registered.
Exhibit 15 Letter re unaudited interim financial information of
KPMG Peat Marwick LLP (included in Consent of KPMG Peat
Marwick LLP filed as Exhibit 23(a)).
Exhibit 23(a)* Consent of KPMG Peat Marwick LLP.
Exhibit 23(b) Consent of Einar M. Rod, General Counsel of the
Corporation (included in his opinion filed as Exhibit 5).
Exhibit 24 Power of Attorney (included on the signature page to this
Registration Statement).
Exhibit 99 First Brands Corporation Non-Employee Directors Stock
Option Plan. Incorporated by reference to Exhibit A to the
Definitive Proxy Statement for Annual Meeting of
Stockholders, filed by the Corporation on September 26,
1995 (Commission File No. 1-10395).
* Filed herewith
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EXHIBIT 4(a)
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
FIRST BRANDS CORPORATION
----------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------
FIRST BRANDS CORPORATION, a Delaware corporation (the
"Corporation"), does hereby certify as follows:
FIRST: That Article FOURTH of the Corporation's Restated Certificate of
Incorporation, as filed in the office of the Secretary of State on April 19,
1991, is hereby amended to read in its entirety as follows:
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 130,000,000
consisting of 120,000,000 shares of Common Stock, par value $0.01
per share ("Common Stock"), and 10,000,000 shares of Preferred
Stock ("Preferred Stock"), par value $1.00 per share.
The Board of Directors is expressly authorized to provide for
the issuance of all or any shares of the Preferred Stock, in one
or more classes or series, and to fix for each such class or
series such voting powers, full or limited, or no voting powers,
and such distinctive designations, preferences and relative,
participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be
stated and expressed in the resolution or resolutions adopted by
the Board of Directors providing for the issuance of such class
or series and as may be permitted by the GCL, including, without
limitation, the authority to provide that any such class or
series may be (i) subject to redemption at such time or times and
at such price or prices; (ii) entitled to receive dividends
(which may be cumulative or non-cumulative) at such rates, on
such conditions, and at such times, and payable in preference to,
or in such relation to, the dividends payable on any other class
or classes or any other series; (iii) entitled to such rights
upon the dissolution of, or upon any distribution of the assets
of, the Corporation; or (iv) convertible into, or exchangeable
for, shares of any other
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class or classes of stock, or of any other series of the same or
any other class or classes of stock, of the Corporation at such
price or prices or at such rates of exchange and with such
adjustments; all as may be stated in such resolution or
resolutions.
SECOND: This Amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, First Brands Corporation has caused this Certificate
of Amendment to be executed this 1st day of November, 1996.
FIRST BRANDS CORPORATION
/s/ Joseph B. Furey
----------------------------
Joseph B. Furey
Vice President and Secretary
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RESTATED CERTIFICATE OF INCORPORATION
OF
FIRST BRANDS CORPORATION
The undersigned, having filed its original Certificate of Incorporation
under the name First Boston Acquisition Holdings, Inc. with the Secretary of
State of the State of Delaware on March 27, 1986, does hereby amend and restate
its Certificate of Incorporation and certify as follows:
FIRST: The name of the Corporation is First Brands Corporation
(hereinafter the "Corporation").
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is 60,000,000 consisting of 50,000,000
shares of Common Stock, par value $0.01 per share ("Common Stock"), and
10,000,000 shares of Preferred Stock ("Preferred Stock"), par value $1.00 per
share.
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The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the Preferred Stock, in one or more classes or
series, and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations, preferences and
relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issuance of such class or series and as may be permitted by
the GCL, including, without limitation, the authority to provide that any such
class or series may be (i) subject to redemption at such time or times and at
such price or prices; (ii) entitled to receive dividends (which may be
cumulative or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; or (iv) convertible into, or exchangeable for, shares of any
other class or classes of stock, or of any other series of the same or any other
class or classes of stock, of the Corporation at such price or prices or at such
rates of exchange and with such adjustments; all as may be stated in such
resolution or resolutions.
FIFTH: The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulations of the powers of the Corporation and of
its directors and stockholders:
A. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, which shall consist of not
less than nine nor more than 15 members. The exact number of directors within
the minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a vote of a majority of the entire Board of Directors.
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B. Upon the adoption of this Paragraph B by the stockholders of
the Corporation and the effectiveness thereof pursuant to Sections 103 and 242
of the GCL, the Board of Directors shall be divided into three classes,
designated Class I, Class II and Class III, which at all times shall be as
nearly equal in number as possible (but with not less than three directors in
each class), as determined by the Board of Directors. The term of office of the
initial Class I directors shall expire at the annual meeting of stockholders for
fiscal year 1991, the term of office of the initial Class II directors shall
expire at the annual meeting of stockholders next succeeding the annual meeting
at which the term of office of the initial Class I directors expires, and the
term of office of the initial Class III directors shall expire at the annual
meeting of stockholders next succeeding the annual meeting at which the term of
office of the initial Class II directors expires. The incumbent directors of the
Corporation shall serve as the initial directors in each of Classes I, II and
III as follows: Initial Class I directors - Robert E. Chappell, Jr., James R.
Maher and William E. Mayer; Initial Class II directors - Leonard G. Herring,
Denis Newman and Ervin R. Shames; Initial Class III directors - Alfred E.
Dudley, Alan C. Egler and James R. McManus. At each annual meeting of
stockholders, directors elected to succeed those whose terms then expire shall
be elected for a term of office expiring at the third succeeding annual meeting
of stockholders after their election. Each director shall hold office during the
term described in this Article FIFTH and until his successor is duly elected and
qualified, or until his earlier resignation or removal. Any director may resign
at any time upon notice to the Corporation. Directors need not be stockholders.
C. Election of directors need not be by written ballot unless the By-
Laws so provide. Advance notice of stockholder nominations for the election of
directors shall be given in the manner provided in the By-Laws.
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D. Except as may be provided in any provision of this Certificate of
Incorporation authorizing the issuance of any Preferred Stock or as may be
provided in any Certificate of Designation authorizing the issuance of any
Preferred Stock pursuant to Article FOURTH hereof, any director, or the entire
Board of Directors, may be removed from office only for cause and only by the
affirmative vote of the holders of a majority of the voting power of all of the
shares of the Corporation entitled to vote for the election of directors (the
"Voting Stock"), voting together as a single class (it being understood that for
purposes of this Article FIFTH, each share of the Voting Stock shall have the
number of votes granted to it pursuant to Article FOURTH or any applicable
Certificate of Designation of this Certificate of Incorporation).
For purposes of application of this Paragraph D, and except as otherwise
provided by law, cause for removal shall be construed to exist only if: (a) the
director whose removal is proposed has been convicted, or where a director was
granted immunity to testify where another has been convicted, of a felony by a
court of competent jurisdiction and such conviction is no longer subject to
appeal; (b) such director has been adjudicated by a court of competent
jurisdiction to be liable for negligence, or misconduct, in the performance of
his duty to the Corporation in a matter of substantial importance to the
Corporation; (c) such director has become mentally incompetent, whether or not
so adjudicated, which mental incompetency directly affects his ability as a
director of the Corporation; (d) such director becomes disabled and such
disability in the opinion of the Board of Directors renders such director unable
to perform his duties as provided herein or in the By-Laws; (e) such director's
actions or failure to act are deemed by the Board of Directors to be in
derogation of the director's duties; or (f) such director is found to be
unsuitable to fulfill his obligations as a director of the Corporation by any
regulatory agency having jurisdiction over the Corporation.
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E. Except as may be provided in any provision of this Certificate of
Incorporation authorizing the issuance of any Preferred Stock or as may be
provided in any Certificate of Designation authorizing the issuance of any
Preferred Stock pursuant to Article FOURTH hereof, newly created directorships
resulting from the increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
by a vote of a majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been appointed expires. No
decrease in the number of authorized directors constituting the entire Board of
Directors shall shorten the term of any incumbent director.
F. Notwithstanding the foregoing, whenever the holders of the Preferred
Stock shall have the right to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, and other
features of such directorships shall be governed by the terms of this
Certificate of Incorporation or any Certificate of Designation authorizing the
issuance of any Preferred Stock pursuant to Article FOURTH hereof applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article FIFTH unless expressly provided by such terms.
G. The directors shall have concurrent power with the stockholders to
make, alter, amend, change, add to or repeal the By-Laws of the Corporation, and
both the directors and the stockholders shall have the power to do so, in the
manner prescribed in the By-Laws, without the consent of the other.
H. In addition to the powers and authority hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such
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powers and do all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions of the GCL, this
Certificate of Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the stockholders shall
invalidate any prior act of the directors which would have been valid if such
By-Laws had not been adopted.
I. The Corporation shall not, without the affirmative vote of sixty-six
and two-thirds percent (66 2/3%) of the shares entitled to vote thereon:
(a) merge or consolidate with any corporation, partnership or other
business form or entity;
(b) sell, exchange or otherwise dispose of all or substantially all of
its assets; or
(c) liquidate, dissolve or wind-up the Corporation.
SIXTH: Any action required or permitted to be taken by the stockholders
must be effected at a duly called annual or special meeting of the stockholders
and may not be effected by any consent in writing by such stockholders;
provided, however, that at such time, and only at such time, as eighty percent
(80%) of the Corporation's voting stock is held by one person or entity, any
such action may be effected by the written consent of the stockholders as
provided in Section 228 of the GCL. Meetings of stockholders may be held within
or without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) outside
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the By-Laws of the Corporation.
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SEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights, conferred upon
stockholder herein are granted subject to this reservation. Notwithstanding
anything contained in this Certificate of Incorporation to the contrary, (a) the
affirmative vote of the holders of at least sixty-six and two-thirds percent (66
2/3%) of the Voting Stock, voting together as a single class, shall be required
to amend, alter, change or repeal, or adopt any provision in conflict with any
provision contained in Article FIFTH, other than the provisions of Paragraph B
of such Article FIFTH, or the provisions of this clause (a) of the second
sentence of Article SEVENTH of this Certificate of Incorporation, and (b) the
affirmative vote of the holders of at least eighty percent (80%) of the Voting
Stock, voting together as a single class, shall be required to amend, alter,
change or repeal, or adopt any provision in conflict with any provision
contained in Paragraph B of Article FIFTH, the first sentence of Article SIXTH
or the provisions of this clause (b) of the second sentence of Article SEVENTH
of this Certificate of Incorporation.
EIGHTH: (a) No director shall be personally liable to the Corporation or
its stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (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 the GCL or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article EIGHTH shall apply to or have any effect
on the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment. The provisions of this Article EIGHTH subsection (a) shall be
effective on and after July 1, 1986.
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(b) The Corporation shall indemnify, to the fullest extent authorized or
permitted by law, any and all persons made, or threatened to be made, a party to
any action or proceeding (whether civil or criminal or otherwise) by reason of
the fact that he, his testator or intestate, is or was a director or officer of
the Corporation or by reason of the fact that such director or officer, at the
request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law.
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This Restated Certificate of Incorporation was duly adopted by a
majority of the directors of this Corporation, acting at a regular meeting of
the Board of Directors, and by the stockholders of the Corporation acting by
written consent pursuant to Section 228 of the GCL, in accordance with the
provisions of Sections 242 and 245 of the GCL. Written notice of the adoption of
this Restated Certificate of Incorporation has been given to the stockholders of
the Corporation who did not consent to such adoption as required by Section 228
of the GCL.
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IN WITNESS WHEREOF, FIRST BRANDS CORPORATION has caused this Restated
Certificate of Incorporation to be signed by its President and its corporate
seal to be affixed hereto and attested by its Secretary on this day of April,
1991.
FIRST BRANDS CORPORATION
By: /s/ Alfred E. Dudley
--------------------------
President
[SEAL]
Attest:
By: /s/ Dan Raymond
-------------------------
Secretary
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EXHIBIT 5
February 3, 1997
The Board of Directors
First Brands Corporation
83 Wooster Heights Road
Danbury, Connecticut 06813-1911
Re: First Brands Corporation
Registration Statement on
Form S-8 (No. 333- )
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Dear Sirs:
I am the General Counsel to First Brands Corporation, a Delaware
corporation (the "Company"), and have acted as its counsel in connection with
its Registration Statement on Form S-8 (the "Registration Statement") being
filed on the date hereof and relating to 120,000 shares of Common Stock, $0.01
par value per share (the "Common Stock"), of the Company and the related
Preferred Stock Purchase Rights (such shares of Common Stock and the related
Preferred Stock Purchase Rights, collectively, the "Shares") which may be
offered and sold pursuant to the First Brands Corporation Non-Employee Directors
Stock Option Plan (the "Plan") of the Company.
In that connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction, of such documents, corporate records
and other instruments as I have deemed necessary or appropriate for the purpose
of rendering this opinion, including: (a) the Restated Certificate of
Incorporation of the Company, as amended to the date hereof; (b) the By-laws of
the Company, as amended to the date hereof; (c) the Registration Statement; (d)
resolutions adopted by the Board of Directors of the Company in respect of the
Plan and the Rights Agreement, dated as of March 22, 1996 between the Company
and Continental Stock Transfer and Trust Company, as Rights Agent; (e) the
resolution adopted by the Stockholders of the Company ratifying the adoption of
the Plan as set forth in Exhibit A to the Proxy Statement for the Annual Meeting
of Stockholders held on October 27, 1995; and (f) the Plan.
Based upon the foregoing, and assuming that the exercise price of any
option granted under the Plan shall not be less than the par value of the Common
Stock, I am of the opinion that the Shares have been duly authorized and will,
when issued upon the exercise of options in
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accordance with provisions of the Plan, be validly issued, fully paid and
nonassesable.
I hereby consent to the reference to me under the caption "Interest of
Named Experts and Counsel" in the Registration Statement, to the reference to me
under the caption "Legality" in the documents constituting the Prospectus
relating to the Registration Statement, and to the filing of this opinion as
Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ Einar M. Rod
Einar M. Rod
General Counsel
EMR/sc
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Exhibit 23(a)
Consent of Independent Auditors
The Board of Directors
First Brands Corporation
We consent to the use of our audit report dated August 8, 1996, on the
consolidated financial statements and schedules of First Brands Corporation and
subsidiaries as of June 30, 1996 and June 30, 1995 and for each of the years in
the three year period ended June 30, 1996 incorporated herein by reference in
the Registration Statement on Form S-8 of First Brands Corporation pertaining to
the First Brands Corporation Non-Employee Directors Stock Option Plan and to the
reference to our firm under the heading "Experts" in the prospectus.
Further, we acknowledge our awareness of the use therein of our review report
dated November 4, 1996, related to our review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such review report is
not considered a part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of section 7 and 11 of the Act.
/s/ KPMG Peat Marwick LLP
New York, New York
February 3, 1997
