SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20459
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
WELLMAN, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-1671740
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(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
SHREWSBURY EXECUTIVE CENTER,
1040 BROAD STREET, SUITE 302, SHREWSBURY, NJ 07702
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(Address of principal executive offices, including zip code)
WELLMAN, INC. DEFERRED COMPENSATION AND RESTRICTED STOCK PLAN
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(Full title of plan)
Christine M. Marx, Esq.
Edwards & Angell
150 John F. Kennedy Parkway
Short Hills, NJ 07078
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(Name and address of agent for service)
973-376-7700
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(Telephone number including area code of agent for service)
Calculation of Registration Fee
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share(1) Offering Price (1) Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 shares $21.25 $21,250,000 $6,268.75
$.001 par value (2)(3)
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) This calculation is made solely for the purpose of determining the amount
of the Registration Fee and is based upon a price of $21.25 per share,
which was the closing price of the Company's Common Stock reported on March
10, 1998.
(2) Includes rights which automatically trade with the Common Stock.
(3) 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.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8 will
be sent or given to employees participating in the Plan as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Those documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are incorporated herein by reference the following documents:
(1) The annual report of the Company on Form 10-K for its fiscal year ended
December 31, 1996, filed pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (1) above.
(3) The description of the shares of Common Stock incorporated by reference
in the Company's registration statement on Form 8-A filed under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the termination of this offering, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of the
filing of such documents. Any statements contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of the Registration Statement to the extent that a
statement contained herein or in any other subsequently filed documents which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF PERSONS NAMED AS EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended, provides
in regard to indemnification of directors and officers as follows:
"145. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE. (a) A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
The Company's Restated Certificate of Incorporation and bylaws provide that
officers and directors of the Company shall be indemnified to the full extent
permitted under subsections (a) through (e) of Section 145 of Title 8 of the
Delaware General Corporation Law.
The Restated Certificate of Incorporation of the Company also contains a
provision eliminating the liability of a director to the Company or its
stockholders for breach of fiduciary duty as a director, other than liability
for (a) breach of the director's duty of loyalty to the corporation or its
stockholders; (b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (c) unlawful stock
purchase or redemption; or (d) any transaction from which the director derived
an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted pursuant to the foregoing provisions, the Registrant
has been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is contrary to public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
NUMBER DESCRIPTION OF EXHIBIT
5 Opinion of Edwards & Angell
23(a) Consent of Ernst & Young LLP
23(b) Consent of KPMG
23(c) Consent of Edwards & Angell (included in Exhibit 5)
24 Power of Attorney (included on signature pages to this
Registration Statement)
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; and
(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 (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission 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.
The 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
in 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Shrewsbury, State of New Jersey on March 10, 1998.
WELLMAN, INC.
By:/s/ Thomas M. Duff
---------------------------------------------
Thomas M. Duff
President
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints the President and Chief Executive Officer and
Vice President and Chief Financial Officer, and any one of them, acting alone,
his or her true and lawful attorneys-in-fact and agents with full power of
substitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any and all documents (including post-effective
amendments) and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their, his or her
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on March 10, 1998.
SIGNATURES TITLE
/s/ Thomas M. Duff President, Chief Executive
- ---------------------------- Officer and Director
Thomas M. Duff
/s/ Keith R. Phillips Vice President, Chief Financial
- ---------------------------- Officer, Treasurer
Keith R. Phillips
/s/ Mark Rosenblum Vice President, Chief Accounting
- ---------------------------- Officer and Corporate Controller
Mark Rosenblum
/s/ James B. Baker Director
- ----------------------------
James B. Baker
Director
- ----------------------------
C. William Beckwith
/s/ Clifford J. Christenson Director
- -----------------------------
Clifford J. Christenson
/s/ Peter H. Conze Director
- -----------------------------
Peter H. Conze
/s/ Allan R. Dragone Director
- -----------------------------
Allan R. Dragone
/s/ Richard F. Heitmiller Director
- -----------------------------
Richard F. Heitmiller
/s/ Jonathan M. Nelson Director
- -----------------------------
Jonathan M. Nelson
<PAGE>
/s/ James E. Rogers Director
- -----------------------------
James E. Rogers
/s/ Raymond C. Tower Director
- -----------------------------
Raymond C. Tower
/s/ Roger A. Vandenberg
- ----------------------------- Director
Roger A. Vandenberg
<PAGE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
administrator has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Shrewsbury,
State of New Jersey, on March 10, 1998.
DEFERRED COMPENSATION AND RESTRICTED
STOCK PLAN
By Compensation Committee of the Board of Directors
By /s/ JAMES E. ROGERS
-------------------------------------------------
James E. Rogers, Chairperson
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Wellman, Inc. Deferred Compensation and Restricted Stock
Plan and in the related Prospectus of our report dated February 12, 1997, with
respect to the consolidated financial statements and schedules of Wellman, Inc.
included in its Annual Report on Form 10-K for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Charlotte, North Carolina
March 9, 1998
Exhibit 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Wellman, Inc. Deferred Compensation and Restricted Stock
Plan and in the related Prospectus of our report dated January 30, 1997, with
respect to the consolidated financial statements of Wellman International
Limited and subsidiaries included in the Annual Report on Form 10-K for Wellman,
Inc. for the year ended 31 December 1996.
KPMG
Chartered Accountants
Registered Auditors
Dublin, Ireland
March 9, 1998
Exhibit 5
March 11, 1998
Wellman, Inc.
1040 Broad Street
Shrewsbury, New Jersey 07702
Ladies and Gentlemen:
We are furnishing this opinion in connection with the filing by Wellman,
Inc. (the "Corporation") of a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") relating to the issuance by the Company of up to 1,000,000 shares
of the Corporation's Common Stock, $0.001 par value, to be issued to certain
employees of the Corporation under the Corporation's Deferred Compensation and
Restricted Stock Plan (the "Plan").
In connection with this opinion, we have examined such corporate records,
certificates and other documents, and reviewed such questions of law, as we have
deemed necessary or appropriate in order to express the opinions contained
herein.
Based upon such examination, it is our opinion that:
1. The shares of Common Stock being registered by the Registration
Statement, when issued and paid for as contemplated in the Plan, assuming due
execution of the certificates therefor, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Registration Statement
and the Prospectus constituting a portion thereof. This opinion may not be used
for any other purpose or relied upon by any other person, firm or corporation
for any purpose without our prior written consent.
Very truly yours,
EDWARDS & ANGELL
By: /s/ Christine M. Marx
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Christine M. Marx
Partner
