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As filed with the Securities and Exchange Commission on February 2, 1998
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
1998 PERFORMANCE STOCK OPTION AND INCENTIVE 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)
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CALCULATION OF REGISTRATION FEE
=========================================================================================================
Proposed Maximum Proposed
Title of Securities to be Amount to be Offering Price Maximum Aggregate Amount of
Registered Registered per Share Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,800,000 shs. $27.4375(1) $49,387,500(1) $14,570
$0.01 Par Value, and
related Preferred
Stock Purchase Rights
=========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The fee with respect to the 1,800,000 shares of
the Common Stock which may be offered and sold under the First Brands
Corporation 1998 Performance Stock Option and Incentive 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 27, 1998.
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PART I
The documents containing the information concerning the First Brands
Corporation 1998 Performance Stock Option and Incentive 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, 1997 (the "1997 10-K");
2. The Corporation's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997;
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, 1997 and June 30, 1996, and
for each of the years in the three year period ended June 30, 1997, have been
included in the 1997 10-K and incorporated by reference herein in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
and upon the authority of such firm as experts in accounting and auditing.
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With respect to the unaudited condensed consolidated interim
financial information of the Corporation for the quarter ended September 30,
1997, 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, 1997, 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
738 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:
Exhibit 4(a) Restated Certificate of Incorporation of the
Corporation, as amended. Incorporated by reference
to Exhibit 4(a) to the Registrant's Registration
Statement on Form S-8 filed by the Registrant on
February 3, 1997.
Exhibit 4(b) By-Laws of the Corporation, as amended.
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 dated as of March 1, 1997 between
the Registrant and The Bank of New York, relating
to the 7.25% Senior Notes due 2007. Incorporated by
reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-4 filed by the
Registrant on April 24, 1997.
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Exhibit 4(d) Purchase Agreement dated as of March 5, 1997
among the Registrant, Bear Stearns & Co. Inc., TD
Securities (USA) Inc., Credit Lyonnais Securities
(USA) Inc. and First Union Capital Markets Corp.,
relating to the 7.25% Senior Notes due 2007.
Incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on Form S-4
filed by Company on April 24, 1997.
Exhibit 4(e) Registration Rights Agreement dated as of
March 5, 1997 among the Registrant, Bear Stearns &
Co. Inc., TD Securities (USA) Inc., Credit Lyonnais
Securities (USA) Inc. and First Union Capital
Markets Corp., relating to the 7.25% Senior Notes
due 2007. Incorporated by reference to Exhibit 4.3
to the Registrant's Registration Statement on Form
S-4 filed by Company on April 24, 1997.
Exhibit 4(f) Rights Agreement, dated as of March 22, 1996,
between the Registrant 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 Registrant'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 1998 Performane Stock
Option and Incentive Plan . Incorporated by
reference to Exhibit A to the Definitive Proxy
Statement for Annual Meeting of Stockholders, filed
by the Corporation on September 26, 1997
(Commission File No. 1-10395).
* Filed herewith
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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;
(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
II-5
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(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.
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 22, 1998.
FIRST BRANDS CORPORATION
By /s/ Donald A. DeSantis
-----------------------
Donald A. DeSantis
Senior Vice President and Chief Financial Officer
II-6
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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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W. V. Stephenson Chairman, President, Chief Executive January 23, 1998
- --------------------- Officer and Director (Principal Executive
William V. Stephenson Officer)
/s/ R. F. Bernstock Director January 23, 1998
- --------------------
R. F. Bernstock
/s/ Alfred E. Dudley Director January 23, 1998
- ---------------------
Alfred E. Dudley
/s/ J. C. Ferries Director January 23, 1998
- ---------------------
J. C. Ferries
Director
- ---------------------
James R. McManus
/s/ James R. Maher Director January 23, 1998
- ---------------------
James R. Maher
/s/ Denis Newman Director January 23, 1998
- ---------------------
Denis Newman
/s/ Thomas H. Rowland Executive Vice President and Director January 23, 1998
- ---------------------
Thomas H. Rowland
/s/ Ervin R. Shames Director January 23, 1998
- ---------------------
Ervin R. Shames
/s/ Robert G. Tobin Director January 23, 1998
- ---------------------
Robert G. Tobin
/s/ Donald A. DeSantis Senior Vice President and Chief Financial January 23, 1998
- ----------------------- Officer and Director (Principal Executive
Donald A. DeSantis 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. Incorporated by reference to
Exhibit 4(a) to the Registrant's Registration Statement
on Form S-8 filed by the Registrant on February 3, 1997.
Exhibit 4(b) By-Laws of the Corporation, as amended. 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 dated as of March 1, 1997 between the
Registrant and The Bank of New York, relating to the
7.25% Senior Notes due 2007. Incorporated by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-4 filed by the Registrant on April 24, 1997.
Exhibit 4(d) Purchase Agreement dated as of March 5, 1997 among
the Registrant, Bear Stearns & Co. Inc., TD Securities
(USA) Inc., Credit Lyonnais Securities (USA) Inc. and
First Union Capital Markets Corp., relating to the 7.25%
Senior Notes due 2007. Incorporated by reference to
Exhibit 4.2 to the Registrant's Registration Statement on
Form S-4 filed by Company on April 24, 1997.
Exhibit 4(e) Registration Rights Agreement dated as of March 5,
1997 among the Registrant, Bear Stearns & Co. Inc., TD
Securities (USA) Inc., Credit Lyonnais Securities (USA)
Inc. and First Union Capital Markets Corp., relating to
the 7.25% Senior Notes due 2007. Incorporated by
reference to Exhibit 4.3 to the Registrant's Registration
Statement on Form S-4 filed by Company on April 24, 1997.
Exhibit 4(f) Rights Agreement, dated as of March 22, 1996,
between the Registrant 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 Registrant'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 1998 Performance Stock Option
and Incentive Plan . Incorporated by reference to Exhibit
A to the Definitive Proxy Statement for Annual Meeting of
Stockholders, filed by the Corporation on September 26,
1997 (Commission File No. 1-10395).
* Filed herewith
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EXHIBIT 5
February 2, 1998
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- )
--------------------------------------------
Dear Sirs:
I am 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 1,800,000 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 1998 Performance Stock Option and
Incentive 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)
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 24, 1997; and (e) the Plan.
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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 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)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
First Brands Corporation
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of First Brands Corporation pertaining to the First Brands Corporation
1998 Performance Stock Option and Incentive Plan of our reports dated August 1,
1997 relating to the consolidated balance sheets of First Brands Corporation and
Subsidiaries as of June 30, 1997 and 1996, and the related consolidated
statements of income, stockholders' equity and cash flows for each of the years
in the three-year period ended June 30, 1997, and the related schedule, which
reports appear in the June 30, 1997 annual report on Form 10-K of First Brands
Corporation, and to the reference to our firm under the heading "Experts" in
Form S-8.
Further, we acknowledge our awareness of the use therein of our review report
dated November 12, 1997, 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 2, 1998
