As filed with the Securities and Exchange Commission on April 1, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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Walter Industries, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3429953
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1500 North Dale Mabry Highway
Tampa, FL 33607
(Address, Including Zip Code, of Registrant's Principal Executive Office)
Walter Industries, Inc. Employee Stock Purchase Plan
Walter Industries, Inc. Long-Term Incentive Stock Plan
(Full title of the Plans)
William H. Weldon
Executive Vice President and Chief Financial Officer
Walter Industries, Inc.
1500 North Dale Mabry Highway
Tampa, FL 33607
(813) 871-4523
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
Peter J. Gordon, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3909
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to Price Offering Registration
be Registered be Registered Per Share Price Fee
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Common Stock, par
value $.01 per
share(3) 3,000,000 13.875(1) $41,625,000(1) $14,353(1)
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Common Stock, par
value $.01 per
share(4) 500,000 13.625(2) $6,812,500(2) $2,349(2)
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(1) With respect to 1,500,000 shares of Common Stock subject to options, the
registration fee is based on the exercise price of $14.125 and with respect
to the remaining 1,500,000 shares, the registration fee is based on the
average of the high and low sales prices of the Common Stock on March 25,
1996 as reported on the Nasdaq National Market.
(2) Estimated solely for calculating the registration fee and calculated
pursuant to Rule 457(c), based on the average of the high and low sale
prices of the Common Stock on March 25, 1996 as reported on the Nasdaq
National Market.
(3) Represents Common Stock issuable under the Walter Industries, Inc. Long-
Term Incentive Stock Plan.
(4) Represents Common Stock issuable under the Walter Industries, Inc. Employee
Stock Purchase Plan.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission by
Walter Industries, Inc. (the "Company") are hereby incorporated in this
Registration Statement by reference:
(a) Prospectus dated October 11, 1995, as supplemented on November 9,
1995, January 12, 1996 and February 16, 1996 (the "Prospectus") filed
as part of the Company's Registration Statement on Form S-1, file no.
33-59013.
(b) Quarterly Reports on Form 10-Q dated November 9, 1995 and January 12,
1996.
(c) Current Report on Form 8-K dated January 22, 1996.
(d) the description of the Company's Common Stock contained in the
Prospectus.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such 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 Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonable incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonably cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
against expenses (including attorneys' fees) in connection with the defense or
settlement of an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses which such officer or director actually and reasonably
incurred.
Article IV of the By-laws of the Company provides for indemnification of its
officers and directors to the fullest extent permitted by Section 145 of the
DGCL.
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Section 102(b)(7) of the DGCL provides that a Delaware corporation may
eliminate or limit the personal liability of a director to a Delaware
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL relating to the unlawful payment of a
dividend or an unlawful stock purchase or redemption or (iv) for any transaction
from which the director derived an improper personal benefit.
Article 6 of the Restated Certificate of Incorporation of the Company
provides for the elimination of personal liability of its directors for monetary
damages for breach of fiduciary duty as a director, except as otherwise provided
by the DGCL.
The Company has entered into a Directors and Officers Indemnification
Agreement which provides that directors and officers shall be indemnified to the
fullest extent permitted by applicable law and obligates the Company to
indemnify the directors and officers of the Company (a) if any director or
officer is or may become a party to any proceeding against all expenses
reasonably incurred by such director or officer in connection with the defense
or settlement of such proceeding, but only if such director or officer acted in
good faith and in a manner which such director or officer reasonably believed to
be in or not opposed to the best interests of the Company, and in the case of a
criminal action or proceeding, in addition, only if such director or officer had
no reasonable cause to believe that his or her conduct was unlawful, (b) if a
director or officer is or may become a party to any proceeding by or in the name
of the Company to procure a judgment in its favor against all expenses
reasonably incurred by such director or officer in connection with the defense
or settlement of such proceeding, but only if such director or officer acted in
good faith and in a manner which such director or officer reasonably believed to
be in or not opposed to the best interests of the Company, except no
indemnification for expenses need be made in respect of any claim in which such
director or officer shall have been adjudged liable to the Company unless a
court in which the proceeding is brought determines otherwise and (c) if a
director or officer has been successful on the merits or otherwise in defense of
any proceeding or claim.
The Registration Rights Agreement dated as of March 17, 1995 and the
Registration Rights Agreement dated as of September 12, 1995 between the Company
and the shareholders named therein (the "Holders") each requires the Company, on
the one hand, and the Holders referred to therein, on the other hand, under
certain circumstances, to indemnify each other and, in the case of the Company's
indemnification obligations, each other person who participates as an
underwriter in an offering of Common Stock thereunder, and each other person who
controls such parties and/or underwriters and their respective directors,
officers, partners, agents and affiliates against certain liabilities, including
liabilities under the Securities Act of 1933, incurred in connection with each
registration of securities pursuant to such registration rights agreement.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
(5) Opinion of Simpson Thacher & Bartlett
23(a) Consent of Price Waterhouse LLP
23(b) Consent of Simpson Thacher & Bartlett (included in their opinion filed
as Exhibit 5 hereto)
24 Power of Attorney
Item 9. Undertakings.
(a) 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;
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(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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
this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information set forth in this Registration
Statement;
provided, however, that the undertakings set forth in 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 this 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 of 1933 may be permitted to directors, officers or 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 Act 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 against the Registrant 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 policy as expressed
in the 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, Walter Industries,
Inc. 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 Tampa, State of Florida on this 29th day of March,
1996.
WALTER INDUSTRIES, INC.
By /s/ WILLIAM H. WELDON
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Name: William H. Weldon
Title: Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on this 29th day of March, 1996.
Signature Title
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* Chairman Emeritus and Director
-------------------------------
James W. Walter
* Chairman of the Board, Chief
------------------------------- Executive Officer and Director
G. Robert Durham (Principal Executive Officer)
* President, Chief Operating
------------------------------- Officer and Director
Kenneth E. Hyatt
* Executive Vice President and
------------------------------- Chief Financial Officer
William H. Weldon (Principal Financial Officer)
Vice President and Controller
------------------------------- and Chief Accounting Officer
Frank A. Hult (Principal Accounting Officer)
* Director
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Howard L. Clark, Jr.
* Director
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James B. Farley
* Director
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Eliot M. Fried
* Director
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Perry Golkin
* Director
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James L. Johnson
* Director
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Michael T. Tokarz
By /s/ WILLIAM H. WELDON
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William H. Weldon
Attorney-in-fact
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EXHIBIT INDEX
Sequential
Exhibit Number Description of Exhibit Page Number
5 Opinion of Simpson Thacher & Bartlett
regarding legality of the securities being
registered
23(a) Consent of Price Waterhouse LLP
23(b) Consent of Simpson Thacher & Bartlett
(included in the opinion filed as Exhibit 5)
24 Power of Attorney
Exhibit 5
[SIMPSON THACHER & BARTLETT LETTERHEAD]
March 29, 1996
Walter Industries, Inc.
1500 North Dale Mabry Highway
Tampa, FL 33607
We have acted as special counsel to Walter Industries, Inc., a Delaware
corporation (the "Company"), in connection with the proposed issuance of up to
3,000,000 shares (the "Shares") of Common Stock, par value $0.01 per share, of
the Company under the Company's Long-Term Incentive Stock Plan (the "Plan") and
the registration of the shares on the Registration Statement on Form S-8 (the
"Registration Statement"), filed by the Company under the Securities Act of
1933, as amended.
We have examined the Registration Statement and the prospectus related
to the Plan. In addition, we have examined, and have relied as to matters of
fact upon, original or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made such other and
further investigations, as we have deemed relevant and necessary as a basis for
the opinion hereinafter set forth.
<PAGE>
Walter Industries, Inc. -2- March 29, 1996
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion the Shares
have been duly authorized by the Company and, when issued in accordance with the
terms of the Plan, will be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States and the Delaware General
Corporation Law.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to, any other person, firm or corporation without
our prior written consent.
We hereby consent to the filing of this opinion of counsel as Exhibit 5
to the Registration Statement.
Very truly yours,
/s/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
Exhibit 23(a)
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Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 12, 1995, which appears on page
F-2 of the Prospectus constituting part of the Registration Statement on Form
S-1 relating to the consolidated financial statements of Walter Industries, Inc.
and its subsidiaries, which appears in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Tampa, Florida
March 28, 1996
Exhibit 24
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POWER OF ATTORNEY
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The undersigned Directors of Walter Industries, Inc., a Delaware
corporation which proposes to file with the Securities and Exchange Commission,
Washington, D.C. under the provisions of the Securities Act of 1933, as amended,
a Registration Statement on Form S-8 with respect to certain shares of its
common stock to be purchased in the open market for the account of employees who
are participants in the Corporation's Employee Stock Purchase Plan and for
shares of its common stock to be sold to certain employees in connection with
the Corporation's 1995 Long-Term Incentive Stock Plan, hereby constitutes and
appoints Donald M. Kurucz, Edward A. Porter and W.H. Weldon, and each of them as
his attorney, with full power of substitution and resubstitution, for and in his
name, place and stead, to sign and file the proposed Registration Statement and
any and all amendments and exhibits thereto, and any and all applications and
other documents to be filed with the Securities and Exchange Commission
pertaining to such securities or such registration, with full power and
authority to do and perform any and all acts and things whatsoever requisite and
necessary to be done in the premises, hereby ratifying and approving the acts of
such attorney or any such substitute.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand at Tampa,
Florida this 14th day of March, 1996.
/s/ J.W. Walter /s/ J. B. Farley
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/s/ M.T. Tokarz /s/ H.L. Clark
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/s/ James L. Johnson /s/ G. R. Durham
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/s/ Perry Golkin /s/ K.E. Hyatt
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/s/ Eliot Fried
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