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As filed with the Securities and Exchange Commission on June 18, 1999.
Registration Statement 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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THE GEON COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 34-1730488
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One Geon Center
Avon Lake, Ohio 44012
(Address of principal executive offices)
THE GEON COMPANY
1999 INCENTIVE STOCK PLAN
(Full title of the plan)
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Gregory L. Rutman, Esq.
Vice President, General Counsel and Secretary
One Geon Center
Avon Lake, Ohio 44012
(440) 930-1000
(Name, address, and telephone number, including area code, of
agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed maximum
maximum aggregate
Title of securities to offering price offering Amount of
be registered Amount to be registered per share (2) price (2) registration fee (2)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock with a
par value of $.10 each 1,000,000 shs.(1) $35.625 $35,625,000 $9,903.75
<FN>
(1) Maximum number of shares available for purchase under the Plan.
(2) Estimated in accordance with Rule 457(c) and 457(h) under the Securities
Act of 1933, as amended, solely for purposes of calculating the
registration fee. The fee with respect to the shares registered herein is
based on the average of the high and low sale prices on June 14, 1999 of
the registrant's Common Stock as reported on the New York Stock Exchange.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference and
made a part hereof: (a) the registrant's Annual Report on Form 10-K for the year
ended December 31, 1998, (b) all other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the Annual Report on Form
10-K referred to in subsection (a) above, and (c) a description of the
registrant's capital stock set forth in the registrant's Registration Statement
on Form S-1 filed with the Commission under the Securities Act of 1933, as
amended (the "Securities Act"), including any amendment or report filed for the
purpose of updating that description.
All documents filed by the registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment 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 of this Registration Statement from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the By-Laws of The Geon Company (the "Company"), the Company
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of the fact that such person is or
was a director or an officer of the Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful.
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The Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Company against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Company
and except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the Company
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Delaware Court of Chancery or such other court shall deem
proper.
To the extent that a person who is or was a director or officer of the
Company has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in either of the foregoing paragraphs, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
The right to indemnification conferred in the By-Laws shall be a
contract right and shall include the right to be paid by the Company the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the General Corporation Law of the State
of Delaware requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding shall be made only upon
delivery to the Company of an undertaking by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified under the
By-Laws or otherwise.
Any indemnification under the By-Laws (unless ordered by a court) shall
be made by the Company only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the By-Laws. Such determination shall be made by (1) the stockholders,
(2) the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the matter in respect of which indemnification
is sought ("Disinterested Directors"), or (3) (a) even if such quorum is not
obtainable, if a quorum of Disinterested Directors so directs or (b) if a Change
of Control (as defined in the By-Laws) shall have occurred, by an independent
legal counsel in a written opinion, which independent legal counsel shall be
selected by a majority vote of a quorum of Disinterested Directors or, if a
Change of Control shall have occurred, by the claimant.
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The indemnification and advancement of expenses provided by the By-Laws
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
a person's official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
The Company may purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Company against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of his or her status as such, whether or not the Company would
have the power to indemnify him or her against such liability under the
provisions of the By-Laws, Section 145 of the General Corporation Law of the
State of Delaware or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS
The Exhibits to the Registration Statement are listed in the Exhibit
Index on page 7 of this Registration Statement.
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 l0(a)(3) of the Securities Act;
(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;
(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;
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PROVIDED, HOWEVER, that paragraphs (a)(l)(i) and (a)(l)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and 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 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 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 Securities 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 its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act 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, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland, State of Ohio, on May 31, 1999.
THE GEON COMPANY
By: /s/ Gregory L. Rutman
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Gregory L. Rutman, Vice President, General
Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated as of May 31, 1999.
Signature Title
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/s/ William F. Patient Chairman of the Board and Director
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William F. Patient
/s/ Thomas A. Waltermire President, Chief Executive Officer and Director
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Thomas A. Waltermire
/s/ W. David Wilson Vice President and Chief Financial Officer
- ------------------------ (Principal Financial Officer)
W. David Wilson
/s/ Gregory P. Smith Controller (Principal Accounting Officer)
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Gregory P. Smith
/s/ James K. Baker Director
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James K. Baker
/s/ Gale Duff-Bloom Director
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Gale Duff-Bloom
/s/ J. Douglas Campbell Director
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J. Douglas Campbell
(Signatures continued on next page)
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(Signatures continued from previous page)
/s/ D. Larry Moore Director
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D. Larry Moore
/s/ R. Geoffrey P. Styles Director
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R. Geoffrey P. Styles
/s/ Farah M. Walters Director
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Farah M. Walters
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THE GEON COMPANY
INDEX TO EXHIBITS
Exhibit Description
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4.1 Restated Certificate of Incorporation of the Company filed as
Exhibit 3(i) to the Company's Form 10-K Annual Report for the
year ended December 31, 1996 and incorporated herein by
reference.
4.2 Amended and Restated By-Laws of the Company filed as Exhibit 3b
to the Company's Form 10-Q for the quarter ended June 30, 1996
and incorporated herein by reference.
4.3 Rights Agreement, dated May 28, 1993, between the Company and
Bank of New York, as Rights Agent, filed as Exhibit 4.2 to the
Company's Form 10-K Annual Report for the year ended December
31, 1996 and incorporated herein by reference.
*5 Opinion of Thompson, Hine and Flory LLP as to the legality of
the securities to be registered.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of Arthur Andersen LLP.
*23.3 Consent of Thompson, Hine and Flory LLP (included as part of
Exhibit 5).
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* Filed herewith.
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EXHIBIT 5
June 18, 1999
The Geon Company
One Geon Center
Avon Lake, Ohio 44012
Re: The Geon Company Registration Statement on Form S-8 -- The Geon
Company 1999 Incentive Stock Plan
Ladies and Gentlemen:
The Geon Company ("Geon") is filing with the Securities and Exchange
Commission a Registration Statement on Form S-8 (the "Registration Statement")
for the registration, under the Securities Act of 1933, as amended, of 1,000,000
shares of common stock, with a par value of $.10 each, of Geon to be issued from
time to time pursuant to the terms of The Geon Company 1999 Incentive Stock Plan
(the "Plan").
Item 601 of Regulation S-K and the instructions to Form S-8 require
that an opinion of counsel concerning the legality of the securities to be
registered be filed as an exhibit to a Form S-8 registration statement if the
securities are original issue shares. This opinion is provided in satisfaction
of that requirement as it relates to the Registration Statement.
In rendering this opinion, we have examined (a) the Restated
Certificate of Incorporation and Amended and Restated Bylaws of Geon, (b) the
Plan, and (c) such records and documents as we have deemed advisable in order to
render this opinion. As a result of the foregoing, we are of the opinion that:
(1) Geon is a corporation validly organized and existing and
in good standing under the laws of the State of Delaware.
(2) When issued, the shares of common stock of Geon which are
the subject of the Registration Statement will be legally issued, fully
paid, and non-assessable.
We hereby consent to the use and filing of this opinion in connection
with the Registration Statement.
Very truly yours,
/s/ Thompson Hine & Flory LLP
Thompson Hine & Flory LLP
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to The Geon Company 1999 Incentive Stock
Plan of our report dated January 28, 1999, with respect to the consolidated
financial statements and schedule of The Geon Company included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
June 15, 1999
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Exhibit 23.2
ARTHUR ANDERSEN LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement (Form S-8 No. 333-00000) pertaining to
The Geon Company 1999 Incentive Stock Plan of our report dated April 30, 1999,
with respect to the Combined Financial Statements of the OxyChem Transferred
Businesses as of December 31, 1998 and 1997, and for each of the three years
then ended, included in The Geon Company's Form 8-K filed with the Securities
and Exchange Commission on May 13, 1999, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Dallas, Texas
June 17, 1999
