As filed with the Securities and Exchange Commission on November 22, 1996
Registration Statement No. 33-63024
- -------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO.2
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
DEAN WITTER, DISCOVER & CO.
(Exact name of registrant as specified in its charter)
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Delaware 36-3145972
(State or other jurisdiction of incorporation or (IRS Employer Identification Number)
organization)
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Two World Trade Center
New York, New York 10048
-------------------------
(Address of principal executive offices, including zip codes)
DEAN WITTER, DISCOVER & CO. OMNIBUS EQUITY INCENTIVE PLAN
DEAN WITTER, DISCOVER & CO. EMPLOYEES REPLACEMENT STOCK PLAN
DEAN WITTER, DISCOVER & CO. 1993 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plans)
Christine A. Edwards
Executive Vice President and General Counsel
Dean Witter, Discover & Co.
Two World Trade Center
66th Floor
New York, New York 10048
(212) 392-2222
(Name, address and telephone number of agent for service)
---------------------------
Calculation of Registration Fee
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Offering
to be Registered Price Per Share Price Amount of
Registered Registration
Fee
Rights to Purchase
Series
A Junior one right per
Participating share of N/A N/A N/A
Preferred Stock (1) common stock
</TABLE>
(1) The Rights to Purchase Series A Junior Participating Preferred Stock
will be attached to and trade with shares of the Common Stock of the
Registrant. Value attributable to such Rights, if any, will be reflected
in the market price of the shares of Common Stock of the Registrant. The
shares of Common Stock of the Registrant to which such Rights relate were
previously registered on the initial filing of the Registration Statement
No. 33-63024 with the Securities and Exchange Commission on May 19, 1993.
The Registration Fee for the shares of Common Stock was paid on such
initial filing of the Registration Statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Post-Effective Amendment No. 2 is being filed to deregister
58,000 shares of Common Stock, par value $.01 per share ("Common Stock"),
of Dean Witter, Discover & Co., a Delaware corporation (the "Registrant"),
originally registered with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), on a Registration Statement on Form S-8, Registration
No. 33-63024 (the "Registration Statement"), filed with the Commission on
May 19, 1993 and amended by Post-Effective Amendment No. 1 filed with the
Commission on May 31, 1994, with respect to the Registrant s 1993 Stock
Plan for Non-Employee Directors. The Registration Statement was filed by
the Registrant with respect to the Registrant s Omnibus Equity Incentive
Plan and Employees Replacement Stock Plan as well as the Registrant s 1993
Stock Plan for Non-Employee Directors. The deregistration relates solely
to 58,000 shares of Common Stock under the 1993 Stock Plan for Non-Employee
Directors. The other 42,000 shares of Common Stock related to
the 1993 Stock Plan for Non-Employee Directors, and the shares of Common
Stock relating to the Omnibus Equity Incentive Plan and the Employee
Replacement Stock Plan that remained registered under the Securities Act
pursuant to the Registration Statement following its amendment by Post-
Effective Amendment No. 1 and remain unissued, are not being deregistered
pursuant to this Post-Effective Amendment No. 2.
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant hereby incorporates the following documents herein by
reference:
(a) The Registrant s Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
(b) The Registrant s Quarterly Report on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996.
(c) The Registrant s Current Reports on Form 8-K dated January 4,
1996, January 8, 1996, January 23, 1996, April 18, 1996, July 18, 1996 and
October 23, 1996.
(d) The description of the Common Stock contained in the Registrant s
Registration Statement on Form 10 filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on January 15, 1993, as amended by the description
contained in the Registrant s Forms 8 dated February 11, February 21 and
February 22, 1993.
(e) The description of the Registrant s Shareholder Rights Plan contained
in the Registrant s Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Exchange Act on April 26, 1995,
as amended by the Form 8-A/A dated May 4, 1995.
All documents subsequently filed by the Registrant pursuant to Section
13(a), Section 13(c), Section 14 and Section 15 of the Exchange Act prior
to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
incorporated herein by reference from the date of filing of 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 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 required.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
No material interests.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 102 of the General Corporation Law of the State of Delaware
(the "GCL") allows a corporation to eliminate the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except in cases where the director
breached his or her duty of loyalty, failed to act in good faith, engaged
in intentional misconduct or a knowing violation of the law, authorized
the unlawful payment of a dividend or approved an unlawful stock
redemption or repurchase or obtained an improper personal benefit. The
Registrant s Amended and Restated Certificate of Incorporation, as
amended, contains a provision which eliminates directors personal
liability as set forth above.
The Registrant s Amended and Restated Certificate of Incorporation,
as amended, and the Registrant s By-Laws provide in effect that the
Registrant shall indemnify its directors and officers, and may indemnify
its employees, to the extent permitted by Section 145 of the GCL. Section
145 of the GCL provides that a Delaware corporation has the power to
indemnify its directors, officers and employees in certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer or employee, or former director or
officer or employee, 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), against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred in connection with such action, suit or proceeding
provided that such director or officer or employee acted in good faith and
in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer or employee had no
cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer or employee, or former director or
officer or employee, 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 such person acted in any of the capacities set forth above,
against expenses (including attorneys fees) actually and reasonably
incurred with the defense or settlement of such action or suit provided
that such person acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, except
that no indemnification may 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
shall determine that despite the adjudication of liability such person is
fairly and reasonably entitled to indemnity for such expenses which the
court shall deem proper.
Section 145 further provides that to the extent that a director or
officer or employee of a corporation has been successful in the defense of
any action, suit or proceeding referred to in subsections (a) and (b) or
in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys fees) actually and
reasonably incurred by him or her in connection therewith; that
indemnification provided by Section 145 shall not be deemed exclusive of
any other rights to which the party seeking indemnification may be
entitled; and empowers the corporation to purchase and maintain insurance
on behalf of a director or officer or employee of the corporation against
any liability asserted against him or her or incurred by him or her in any
such capacity or arising out of his or her status as such whether or not
the corporation would have the power to indemnify him or her against such
liabilities under Section 145.
The Registrant has in effect insurance policies in the amount of $75
million for general officers and directors liability insurance and $25
million for fiduciary liability insurance covering all of the Registrant s
directors and officers in certain instances where by law they may not be
indemnified by the Registrant.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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4.1 Dean Witter, Discover & Co. Omnibus Equity Incentive Plan.*
4.2 Dean Witter, Discover & Co. Employees Replacement Stock Plan.*
4.3 Dean Witter, Discover & Co. 1993 Stock Plan for Non-Employee Directors.*
4.4 Rights Agreement, dated as of April 25, 1995, between Dean Witter, Discover & Co. and
Chemical Bank, as Rights
Agent, which includes as Exhibit B thereto the Form of Rights Certificate, incorporated
herein by reference to
Exhibit 1 to the Registrant s Registration Statement on Form 8-A dated April 26, 1995.
5.1 Opinion of Brown & Wood.
15.1 Letter of awareness from Deloitte & Touche LLP concerning unaudited interim financial
information.
23.1 Consent of Deloitte & Touche LLP as to financial statements of the Registrant for the
year ended December 31,
1995.
23.2 Consent of Brown & Wood (included as part of Exhibit 5.1).
24.1 Powers of Attorney (included in Part II of the Registration Statement under the caption
"Signatures").*
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* Previously Filed
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; (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. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the high or low end of the estimated maximum offering range
may be reflected in the form of a prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and (iii) to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement; provided, however, that
paragraphs (a)(1)(i) and (ii) shall 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 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 herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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 or Section 15(d)
of the Securities Exchange Act of 1934 (and where applicable, each filing
of an employee benefit plan s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) 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 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 by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
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 Act and
will be governed by a final adjudication of such issue.
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 the requirements for filing on Form S-8 and has
duly caused this Amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in New York, New
York, on this 22nd day of November, 1996.
DEAN WITTER, DISCOVER & CO.
By: /s/ Ronald T. Carman
-----------------------
Ronald T. Carman
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment to Registration Statement has been signed below by
the following persons in the capacities indicated on this 22nd day of
November, 1996.
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SIGNATURES TITLE
---------- -----
* Chairman of the Board, Chief Executive Officer and
-----------------
Philip J. Purcell Director
(Principal Executive Officer)
* Executive Vice President and Chief Financial
-------------------
Thomas C. Schneider Officer (Principal
Financial Officer)
* Senior Vice President and Controller (Principal
---------------
Robert P. Seass Accounting
Officer)
* Director
-----------------
Edward A. Brennan
----------------------- Director
Alfred C. DeCrane, Jr.
* Director
------------------
Robert M. Gardiner
----------------------- Director
C. Robert Kidder
* Director
----------------
Michael A. Miles
* Director
---------------
Sybil C. Mobley
* Director
-----------------------
Clarence B. Rogers, Jr.
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*By: /s/ Ronald T. Carman
------------------------
Ronald T. Carman
Attorney in Fact
EXHIBIT INDEX
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Exhibit Number
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4.1 Dean Witter, Discover & Co. Omnibus Equity Incentive Plan.*
4.2 Dean Witter, Discover & Co. Employees Replacement Stock Plan.*
4.3 Dean Witter, Discover & Co. 1993 Stock Plan for Non-Employee
Directors.*
4.4 Rights Agreement, dated as of April 25, 1995, between Dean
Witter, Discover & Co. and Chemical Bank, as Rights Agent,
which includes as Exhibit B thereto the Form of Rights
Certificate, incorporated herein by reference to Exhibit 1 to
the Registrant s Registration Statement on Form 8-A dated
April 26, 1995.
5.1 Opinion of Brown & Wood.
15.1 Letter of awareness from Deloitte & Touche LLP concerning
unaudited interim financial information.
23.1 Consent of Deloitte & Touche LLP as to financial statements of
the Registrant for the year ended December 31, 1995.
23.2 Consent of Brown & Wood (included as part of Exhibit 5.1).
24.1 Power of Attorney (included in Part II of the Registration
Statement under the caption "Signatures").*
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*Previously Filed
EXHIBIT 5.1
November 22, 1996
Dean Witter, Discover & Co.
Two World Trade Center
New York, New York 10048
Gentlemen:
We have acted as special counsel to Dean Witter, Discover & Co., a
Delaware corporation (the "Company"), in connection with the proposed issuance
by the Company of an aggregate of up to 9,717,000 shares of Common Stock, par
value $.01 per share (the "Shares"), and up to 9,717,000 Rights to Purchase
Series A Junior Participating Preferred Stock ("Rights") pursuant to the Dean
Witter, Discover & Co. 1993 Stock Plan for Non-Employee Directors and Dean
Witter, Discover & Co.'s Omnibus Equity Incentive Plan and Employees
Replacement Stock Plan (the "Plans").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the
"Securities Act").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Registration Statement on Form S-8 (File No. 33-63024) filed with
the Securities and Exchange Commission (the "Commission") under the
Securities Act (together with all exhibits thereto, the "Registration
Statement") on May 19, 1993, (ii) Post-Effective Amendment No. 1 to the
Registration Statement filed with the Commission under the Securities Act on
May 31, 1994, (iii) Post-Effective Amendment No. 2 to the Registration
Statement to be filed with the Commission under the Securities Act on
November 22, 1996, (iv) the Amended and Restated Certificate of Incorporation
of the Company as currently in effect, (v) the By-laws of the Company as
currently in effect, (vi) specimens of the certificates to be used to
represent the Shares and (vii) resolutions of the Board of Directors of the
Company relating to the authorization of the issuance of the Shares and the
Rights, the adoption of the Plan and the filing of the Registration Statement
and Post-Effective Amendments Nos. 1 and 2. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and such agreements, certificates of public officials,
certificates of officers or representatives of the Company and others, and such
other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, 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. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and
others.
Based upon the foregoing and subject to the limitations set forth
herein, we are of the opinion that the issuance of that:
1. The Shares have been duly authorized and, when issued and delivered
in accordance with the terms and conditions of the Plan and against payment
therefor, the Shares will be validly issued, fully paid and nonassessable.
2. The issuance of the Rights has been duly authorized by all
necessary corporate action of the Company.
We do not purport to be expert on, and we are not expressing an opinion
with respect to, laws other than the laws of the United States and the State
of New York and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
Brown & Wood LLP
EXHIBIT 15.1
To the Board of Directors and Shareholders of
Dean Witter, Discover & Co.:
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of Dean Witter, Discover & Co. and subsidiaries for the
periods ended March 31, 1996 and 1995, June 30, 1996 and 1995 and September
30, 1996 and 1995, as indicated in our reports dated May 15, 1996, August 14,
1996 and November 13, 1996, respectively; because we did not perform an
audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996 are being used in this Registration
Statement.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
DELOITTE & TOUCHE LLP
New York, New York
November 22, 1996
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 2 to Registration Statement No. 33-63024 of Dean Witter, Discover & Co.
("DWDC") on Form S-8 (relating to the DWDC Omnibus Equity Incentive Plan, the
DWDC Employees Replacement Stock Plan and the DWDC 1993 Stock Plan for Non-
Employee Directors) of our reports dated February 21, 1996, appearing in and
incorporated by reference in the Annual Report on Form 10-K of Dean Witter,
Discover & Co. for the year ended December 31, 1995.
DELOITTE & TOUCHE LLP
New York, New York
November 22, 1996
