SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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 Incorporation (IRS Employer Identification
or Organization) No.)
Two World Trade Center
New York, New York 10048
(Address of Principal Executive Offices)
DEAN WITTER, DISCOVER & CO. EMPLOYEES' EQUITY ACCUMULATION PLAN
(Full Title of the Plan)
Christine A. Edwards, Esq.
Executive Vice President and General Counsel
Dean Witter, Discover & Co.
Two World Trade Center
New York, New York 10048
(212) 392-2222
(Name, Address and Telephone Number of Agent For Service)
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Calculation of Registration Fee
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Proposed Maximum Proposed Maximum
Title of Securities To Be Amount To Be Offering Price Per Aggregate Offering Amount Of
Registered Registered Share(1) Price(1) Registration Fee(1)
Common Stock, par value $.01
per share(2) 30,000,000 $40.375 $1,211,250,000 $367,046
shares
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(1) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
amount of the registration fee based upon the average of the high and low
prices reported for the shares on the New York Stock Exchange on May 28,
1997.
(2) This Registration Statement also covers the associated preferred stock
purchase rights (the "Rights") issued pursuant to a Rights Agreement, dated
as of April 25, 1995 and amended as of February 4, 1997, between the
Registrant and The Chase Manhattan Bank (formerly Chemical Bank), as Rights
Agent. Prior to the occurrence of certain events, the Rights will not be
exercisable or evidenced separately from the Registrant's Common Stock.
___________________________________________________________________________
Part I
INFORMATION REQUIRED IN THE SECTION 10 PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the "Note" to Part
I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates the following documents herein by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1997;
(c) Current Reports on Form 8-K dated January 22, 1997, February 4,
1997 (two reports), February 20, 1997, February 27, 1997, February 28, 1997,
April 15, 1997, April 17, 1997 (two reports) and April 30, 1997;
(d) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 10 filed with the Securities and Exchange
Commission (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; and
(f) Amendment, dated February 4, 1997, to the Rights Agreement, dated
as of April 25, 1995, between the Registrant and The Chase Manhattan Bank
(formerly Chemical Bank), as Rights Agent (incorporated by reference to
Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated February 4,
1997).
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15(d) 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 in this Registration Statement and to be part hereof 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.
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Not required.
Item 5. Interests of Named Experts and Counsel.
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No material interests.
Item 6. Indemnification of Directors and Officers.
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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.
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4.1 Dean Witter, Discover & Co. Employees' Equity Accumulation Plan. Filed as Exhibit 10.2
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997
and incorporated herein by reference.
4.2 Rights Agreement, dated as of April 25, 1995, between the Registrant 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.
4.3 Amendment to Rights Agreement, dated as of February 4, 1997. Filed as Exhibit 4.1 to
the Registrant's Current Report on Form 8-K, dated February 4, 1997, and incorporated
herein by reference.
4.4 Certificate of Designation of the Registrant relating to the Registrant's Series A
Junior Participating Preferred Stock. Filed as Exhibit 3(b) to the Registrant's
Registration Statement Number 33-92172 on Form S-3 and incorporated herein by reference.
5.1 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.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Brown & Wood LLP (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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Item 9. Undertakings.
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(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 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;
(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 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
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
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in New York, New York, on this 30th day of May,
1997.
DEAN WITTER, DISCOVER & CO.
By: /s/ Philip J. Purcell
-----------------------------------------
Philip J. Purcell
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person 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
or her true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments,
including post-effective amendments, to this Registration Statement (any of
which amendments may make such changes and additions to this Registration
Statement 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 or she 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.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on this 30th day of May, 1997.
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SIGNATURE TITLE
/s/ Philip J. Purcell
Chairman of the Board, Chief Executive
Officer and Director (Principal Executive
Philip J. Purcell Officer)
/s/ Thomas C. Schneider
Executive Vice President and Chief
Financial Officer and Director (Principal
Thomas C. Schneider Financial Officer)
/s/ Robert P. Seass
Senior Vice President and Controller
(Principal Accounting Officer)
Robert P. Seass
/s/ Edward A. Brennan
Director
Edward A. Brennan
/s/ C. Robert Kidder
Director
C. Robert Kidder
/s/ Miles L. Marsh
Director
Miles L. Marsh
/s/ Michael A. Miles
Director
Michael A. Miles
/s/ Clarence B. Rogers, Jr.
Director
Clarence B. Rogers, Jr.
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EXHIBIT INDEX
Exhibit Number
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4.1 Dean Witter, Discover & Co. Employees' Equity Accumulation Plan. Filed as Exhibit 10.2
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997
and incorporated herein by reference.
4.2 Rights Agreement, dated as of April 25, 1995, between the Registrant 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.
4.3 Amendment to Rights Agreement, dated as of February 4, 1997. Filed as Exhibit 4.1 to
the Registrant's Current Report on Form 8-K, dated February 4, 1997, and incorporated
herein by reference.
4.4 Certificate of Designation of the Registrant relating to the Registrant's Series A
Junior Participating Preferred Stock. Filed as Exhibit 3(b) to the Registrant's
Registration Statement Number 33-92172 on Form S-3 and incorporated herein by reference.
5.1 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.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Brown & Wood LLP (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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EXHIBIT 5.1
May 30, 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 (i) up to 30,000,000 shares of Common Stock, par
value $.01 per share (the "Shares") and (ii) the associated preferred stock
purchase rights (the "Rights") to be issued pursuant to a Rights Agreement,
dated as of April 25, 1995 and amended as of February 4, 1997, between the
Company and The Chase Manhattan Bank (formerly Chemical Bank, as Rights Agent
(the "Rights Agreement"), pursuant to the Dean Witter, Discover & Co.
Employees' Equity Accumulation Plan (the "Plan").
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 to be filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act (together
with all exhibits thereto, the "Registration Statement") on May 30, 1997,
(ii) the Amended and Restated Certificate of Incorporation of the Company as
currently in effect, (iii) the Amended and Restated By-laws of the Company as
currently in effect, (iv) specimens of the certificates to be used to
represent the Shares, (v) the Rights Agreement and (vi) 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. 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 opinions 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:
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,
/s/ 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 as of March 31, 1997 and for the three month periods ended March
31, 1997 and 1996, as indicated in our report dated April 30, 1997; because
we did not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in
your Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, is
incorporated by reference in the following Registration Statements of Dean
Witter, Discover & Co.:
Filed on Form S-3:
Registration Statement No. 33-57202
Registration Statement No. 33-60734
Registration Statement No. 33-89748
Registration Statement No. 33-92172
Registration Statement No. 333-7947
Registration Statement No. 333-22409
Registration Statement No. 333-27881
Registration Statement No. 333-27893
Registration Statement No. 333-27919
Filed on Form S-4:
Registration Statement No. 333-25003
Filed on Form S-8:
Registration Statement No. 33-62374
Registration Statement No. 33-63024
Registration Statement No. 33-63026
Registration Statement No. 33-78038
Registration Statement No. 33-79516
Registration Statement No. 33-82240
Registration Statement No. 33-82242
Registration Statement No. 33-82244
Registration Statement No. 333-4212
We are also aware that the aforementioned report, pursuant to Rule
436(c) under the Securities Act of 1933, is 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.
/s/ Deloitte & Touche LLP
New York, New York
May 29, 1997
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Dean Witter, Discover & Co. on Form S-8 (relating to the Dean
Witter, Discover & Co. Employees' Equity Accumulation Plan) of our reports
dated February 21, 1997, 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, 1996.
/s/ Deloitte & Touche LLP
New York, New York
May 29, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of Dean Witter, Discover & Co. for 30,000,000 shares of
common stock, par value $0.01 per share, pertaining to the Dean Witter,
Discover & Co. Employees' Equity Accumulation Plan of our report dated
January 7,1997, with respect to the consolidated financial statements and
financial statement schedule of Morgan Stanley Group Inc. for the fiscal year
ended November 30, 1996 included and incorporated by reference in the Current
Report on Form 8-K of Dean Witter, Discover & Co. dated February 28, 1997.
/s/ Ernst & Young LLP
New York, New York
May 29, 1997
