As filed with the Securities and Exchange Commission on February 18, 1997
Registration Statement No. 33-63024
- -----------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO.3
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)
Delaware 36-3145972
-------- ----------
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
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
<TABLE>
<CAPTION>
Title of Securities Amount to be Registered Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Price Per Share Aggregate Offering Price Registration Fee
- ------------------- ----------------------- ------------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value 16,950,466 N/A N/A N/A
$.01 per share(1)
Rights to Purchase Series one-half Right per share N/A N/A N/A
A Junior Participating of Common Stock
Preferred Stock (2)
</TABLE>
(1) This Registration Statement is hereby amended to adjust the number of
shares of Common Stock for the two-for-one stock split payable as of January
14, 1997 to shareholders of record at the close of business on December 26,
1996 (the "Stock Split"). As a result of the Stock Split, this Registration
Statement covers 16,950,466 shares of Common Stock, of which 14,666,932
shares of Common Stock remain available for issuance under the Dean Witter,
Discover & Co. Omnibus Equity Incentive Plan, the Dean Witter, Discover & Co.
Employees Replacement Stock Plan and the Dean Witter, Discover & Co. Stock
Plan For Non-Employee Directors. The Registration Fee for the shares of
Common Stock was paid on the initial filing of the Registration Statement.
(2) The Rights to Purchase Series A Junior Participating Preferred Stock are
attached to and trade with shares of the Common Stock. Value attributable to
such Rights, if any, is reflected in the market price of the shares of Common
Stock. As a result of the Stock Split, each share of Common Stock has
attached thereto one-half Right.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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, October 23,
1996, January 22, 1997, February 12, 1997 and February 14, 1997.
(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 Amended and Restated 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.
--------
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 LLP.*
5.2 Additional Opinion of Brown & Wood LLP.
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 LLP (included as part of Exhibit 5.1).*
23.3 Consent of Brown & Wood LLP (included as part of Exhibit 5.2).
24.1 Powers of Attorney (included in Part II of the Registration Statement
under the caption "Signatures").*
24.2 Power of Attorney of Robert P. Seass
* 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 or any material change to such information in the
Registration Statement; provided, however, that paragraphs (a)(1)(i) and (ii)
does 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 therein,
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(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 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 18th
day of February, 1997.
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 18th day of February,
1997.
SIGNATURES TITLE
---------- -----
* Chairman of the Board, Chief
----------------------- Executive Officer and Director
Philip J. Purcell (Principal Executive Officer)
* Executive Vice President and Chief
----------------------- Financial Officer (Principal
Thomas C. Schneider Financial Officer)
* Senior Vice President and
----------------------- Controller (Principal Accounting
Robert P. Seass Officer)
Director
-----------------------
Nancy Kassebaum Baker
* Director
-----------------------
Edward A. Brennan
Director
-----------------------
Alfred C. DeCrane, Jr.
* Director
-----------------------
Robert M. Gardiner
Director
-----------------------
C. Robert Kidder
Director
-----------------------
Miles L. Marsh
* Director
-----------------------
Michael A. Miles
* Director
-----------------------
Sybil C. Mobley
* Director
-----------------------
Clarence B. Rogers, Jr.
*By: /s/ Ronald T. Carman
-------------------------
Ronald T. Carman
Attorney in Fact
EXHIBIT INDEX
Exhibit
Number
- -------
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 LLP.*
5.2 Additional Opinion of Brown & Wood LLP.
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 LLP (included as part of Exhibit 5.1).*
23.3 Consent of Brown & Wood LLP (included as part of Exhibit 5.2).
24.1 Power of Attorney (included in Part II of the Registration Statement
under the caption "Signatures").*
24.2 Power of Attorney of Robert P. Seass
*Previously Filed
EXHIBIT 5.2
February 18, 1997
Dean Witter, Discover & Co.
Two World Trade Center
New York, New York 10048
Ladies and 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 16,950,466 shares of Common Stock,
par value $.01 per share (the "Shares"), and 8,475,233 Rights to Purchase
Series A Junior Participating Preferred Stock ("Rights") pursuant to the Dean
Witter, Discover & Co. Omnibus Equity Incentive Plan, the Dean Witter,
Discover & Co. Employees Replacement Stock Plan and the Dean Witter, Discover
& Co. 1993 Stock Plan for Non-Employee Directors (together, 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 on May 31, 1994, (iii) Post-
Effective Amendment No. 2 to the Registration Statement filed with the
Commission on November 22, 1996, (iv) Post-Effective Amendment No. 3 to the
Registration Statement to be filed with the Commission under the Securities
Act on February 18, 1997, (v) the Amended and Restated Certificate of
Incorporation of the Company as currently in effect, (vi) the By-laws of the
Company as currently in effect, (vii) specimens of the certificates to be
used to represent the Shares and (viii) 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 Plans and the filing of the Registration
Statement. 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 that 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:
1. The Shares have been duly authorized and, when issued and delivered
in accordance with the terms and conditions of the respective Plans 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 5.2 to the Registration Statement.
Very truly yours,
Brown & Wood LLP
EXHIBIT 15.1
To the 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
consolidated 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 are 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 are also 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.
New York, New York
February 18, 1997
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 3 to Registration Statement No. 33-63024 of Dean Witter, Discover & Co.
("DWDC") on Form S-8 (relating to the DWDC Omnibus Equity Incentive Plan,
DWDC Employees Replacement Stock Plan and 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 DWDC for the
year ended December 31, 1995.
New York, New York
February 18, 1997
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that Robert P. Seass, Senior Vice
President and Controller of Dean Witter, Discover & Co., whose signature
appears below, hereby constitutes and appoints Christine A. Edwards, Mitchell
M. Merin, Ronald T. Carman and Michael T. Gregg, and each of them singly, his
true and lawful attorney-in-fact and agent with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all post-effective amendments to the following
registration statements on Form S-8 (any of which amendments may make such
changes and additions to such registration statements as such attorneys-in-
fact may deem necessary or appropriate) and to file the same, with all
exhibits thereto, and any other documents that may be required in connection
therewith, granting unto said attorneys-in-fact and agents full power and
authority to be done in and about the premises, as fully 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, or their substitutes, may
lawfully do or cause to be done by virtue hereof:
No. 33-63024
No. 33-63026
No. 33-78038
No. 33-79516
No. 33-82240
No. 33-82242
No. 33-82244
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed below by the undersigned in the
capacity indicated on this 15th day of November, 1996.
/s/ Robert P. Seass
-----------------------
Robert P. Seass
Senior Vice President and Controller
(Principal Accounting Officer)
