-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, I1F64AEKlx+arDEMpWTCw/pJMAnCZ6zjVXWGjcHdWnMl2k8BWjybaxs64JHPT0dS Y0azl/4RpsHuXfXPMdPVwQ== 0000950117-98-000144.txt : 19980203 0000950117-98-000144.hdr.sgml : 19980203 ACCESSION NUMBER: 0000950117-98-000144 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980202 EFFECTIVENESS DATE: 19980202 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST BRANDS CORP CENTRAL INDEX KEY: 0000797320 STANDARD INDUSTRIAL CLASSIFICATION: UNSUPPORTED PLASTICS FILM & SHEET [3081] IRS NUMBER: 061171404 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-45379 FILM NUMBER: 98518841 BUSINESS ADDRESS: STREET 1: 83 WOOSTER HEIGHTS RD BLDG 301 STREET 2: PO BOX 1911 CITY: DANBURY STATE: CT ZIP: 06813-1911 BUSINESS PHONE: 2037312300 MAIL ADDRESS: STREET 1: P.O. BOX 1911 CITY: DANBURY STATE: CT ZIP: 06813-1911 S-8 1 FIRST BRANDS CORPORATION S-8 As filed with the Securities and Exchange Commission on February 2, 1998 Registration No. 333-_____________________ =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------------------- FIRST BRANDS CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 06-1171404 (State of Incorporation) (IRS Employer Identification No.) 83 WOOSTER HEIGHTS ROAD P.O. BOX 1911 DANBURY, CONNECTICUT 06813-1911 (Address of principal executive offices) FIRST BRANDS CORPORATION 1998 PERFORMANCE STOCK OPTION AND INCENTIVE PLAN (Full Title of Plan) EINAR M. ROD, ESQ. General Counsel FIRST BRANDS CORPORATION 83 Wooster Heights Road, P.O. Box 1911 Danbury, CT 06813-1911 (203) 731-2305 (Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE ========================================================================================================= Proposed Maximum Proposed Title of Securities to be Amount to be Offering Price Maximum Aggregate Amount of Registered Registered per Share Offering Price Registration Fee - --------------------------------------------------------------------------------------------------------- Common Stock, 1,800,000 shs. $27.4375(1) $49,387,500(1) $14,570 $0.01 Par Value, and related Preferred Stock Purchase Rights =========================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h). The fee with respect to the 1,800,000 shares of the Common Stock which may be offered and sold under the First Brands Corporation 1998 Performance Stock Option and Incentive Plan is calculated on the basis of the average of the high and low prices for the Registrant's Common Stock reported on the New York Stock Exchange Composite Tape on January 27, 1998. PART I The documents containing the information concerning the First Brands Corporation 1998 Performance Stock Option and Incentive Plan (the "Plan") of First Brands Corporation, a Delaware corporation, specified in Part 1 of the Form S-8 Registration Statement under the Securities Act of 1933, as amended (the "Securities Act"), are not being filed as part of this Registration Statement in accordance with the Note to Part I of Form S-8 Registration Statement but will be sent to eligible employees under the Plan in accordance with Rule 428 under the Securities Act. 1 PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by First Brands Corporation, a Delaware corporation (the "Corporation"), with the Securities and Exchange Commission (the "Commission") are incorporated in this Registration Statement by reference: 1. The Corporation's Annual Report on Form 10-K for the fiscal year ended June 30, 1997 (the "1997 10-K"); 2. The Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997; 3. The description of the Corporation's Common Stock, $0.01 par value (the "Common Stock"), contained in its Registration Statement on Form 8-A, effective as of December 11, 1989, filed under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the description of the Corporation's Preferred Stock Purchase Rights contained in its Registration Statement on Form 8-A dated March 22, 1996, including all amendments and reports updating such descriptions. All documents subsequently filed by the Corporation with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement. Each document incorporated by reference into this Registration Statement shall be deemed to be a part of this Registration Statement from the date of the filing of such document with the Commission until the information contained therein is superseded or updated by any subsequently filed document which is incorporated by reference into this Registration Statement or by any document which constitutes part of the prospectus relating to the Plan meeting the requirements of Section 10(a) of the Securities Act. EXPERTS The consolidated financial statements and schedules of First Brands Corporation and subsidiaries as of June 30, 1997 and June 30, 1996, and for each of the years in the three year period ended June 30, 1997, have been included in the 1997 10-K and incorporated by reference herein in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, and upon the authority of such firm as experts in accounting and auditing. II-1 With respect to the unaudited condensed consolidated interim financial information of the Corporation for the quarter ended September 30, 1997, incorporated by reference herein, KPMG Peat Marwick LLP has reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate report included in First Brands Corporation's quarterly report on Form 10-Q for the quarter ended September 30, 1997, incorporated by reference herein, states that they did not audit and they do not express an opinion on that condensed consolidated interim financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. KPMG Peat Marwick LLP is not subject to the liability provisions of Section 11 of the Securities Act for their report on the unaudited condensed consolidated interim financial information because such report is not considered a "report" or a "part" of the Registration Statement prepared or certified by the accountant within the meaning of Sections 7 and 11 of the Securities Act. The financial statements incorporated herein by reference to all documents subsequently filed by the Corporation pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, are or will be so incorporated in reliance upon the reports of KPMG Peat Marwick LLP, and any other independent public accountants, relating to such financial information, and upon the authority of such independent public accountants as experts in accounting and auditing in giving such reports to the extent that the particular firm has audited such financial statements and consented to the use of their reports thereon. ITEM 4. DESCRIPTION OF SECURITIES The securities to be offered under this Registration Statement are registered under Section 12 of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The legality of the securities to which this Registration Statement relates has been passed upon for the Corporation by Einar M. Rod, General Counsel of the Corporation. Mr. Rod is paid a salary by the Corporation, participates in benefit plans of the Corporation and owns directly or indirectly 738 shares of the Common Stock. II-2 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Corporation's by-laws provide for indemnification by the Corporation of its directors and officers to the full extent permitted by the General Corporation Law of the State of Delaware (the "Delaware Law"). The Corporation is empowered by Section 145 of the Delaware Law, subject to the procedures and limitations stated therein, to indemnify any person against expenses (including attorneys' fees), judgements, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding in which such person was or is made a party by reason of his being or having been a director, officer, employee or agent of the Corporation, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe his conduct was unlawful. The statute provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. The Corporation maintains a liability and indemnification policy covering officers and directors of the Corporation. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS The following Exhibits are filed herewith as part of this Registration Statement: Exhibit 4(a) Restated Certificate of Incorporation of the Corporation, as amended. Incorporated by reference to Exhibit 4(a) to the Registrant's Registration Statement on Form S-8 filed by the Registrant on February 3, 1997. Exhibit 4(b) By-Laws of the Corporation, as amended. Incorporated by reference to Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the fiscal year ended June 30, 1995 (Commission File No. 1-10395). Exhibit 4(c) Indenture dated as of March 1, 1997 between the Registrant and The Bank of New York, relating to the 7.25% Senior Notes due 2007. Incorporated by reference to Exhibit 4.1 to the Registrant's Registration Statement on Form S-4 filed by the Registrant on April 24, 1997. II-3 Exhibit 4(d) Purchase Agreement dated as of March 5, 1997 among the Registrant, Bear Stearns & Co. Inc., TD Securities (USA) Inc., Credit Lyonnais Securities (USA) Inc. and First Union Capital Markets Corp., relating to the 7.25% Senior Notes due 2007. Incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-4 filed by Company on April 24, 1997. Exhibit 4(e) Registration Rights Agreement dated as of March 5, 1997 among the Registrant, Bear Stearns & Co. Inc., TD Securities (USA) Inc., Credit Lyonnais Securities (USA) Inc. and First Union Capital Markets Corp., relating to the 7.25% Senior Notes due 2007. Incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-4 filed by Company on April 24, 1997. Exhibit 4(f) Rights Agreement, dated as of March 22, 1996, between the Registrant and Continental Stock Transfer & Trust Company, as Rights Agent, including the form of Certificate of Designation, Preferences and Rights of Junior Participating Preferred Stock, Series A., attached thereto as Exhibit A, the form of Rights Certificate attached thereto as Exhibit B and the Summary of Rights attached thereto as Exhibit C. Incorporated by reference to Exhibit 1.1 to the Registrant's Registration Statement on Form 8-A dated March 22, 1996. Exhibit 5* Opinion of Einar M. Rod, General Counsel of the Corporation, as to the legality of the securities being registered. Exhibit 15 Letter re unaudited interim financial information of KPMG Peat Marwick LLP (included in Consent of KPMG Peat Marwick LLP filed as Exhibit 23(a)). Exhibit 23(a)* Consent of KPMG Peat Marwick LLP. Exhibit 23(b) Consent of Einar M. Rod, General Counsel of the Corporation (included in his opinion filed as Exhibit 5). Exhibit 24 Power of Attorney (included on the signature page to this Registration Statement). Exhibit 99 First Brands Corporation 1998 Performane Stock Option and Incentive Plan . Incorporated by reference to Exhibit A to the Definitive Proxy Statement for Annual Meeting of Stockholders, filed by the Corporation on September 26, 1997 (Commission File No. 1-10395). * Filed herewith II-4 ITEM 9. UNDERTAKINGS (a) The Corporation 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; (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; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do 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 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 Corporation hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Corporation's annual report pursuant to section 13(a) or 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. (h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Corporation pursuant to the foregoing provisions, or otherwise, the Corporation has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in that Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities II-5 (other than the payment by the Corporation of expenses incurred or paid by a director, officer or controlling person of the Corporation 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 Corporation 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Corporation 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 Danbury, State of Connecticut, on January 22, 1998. FIRST BRANDS CORPORATION By /s/ Donald A. DeSantis ----------------------- Donald A. DeSantis Senior Vice President and Chief Financial Officer II-6 KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and officers of the Corporation hereby constitutes and appoints Donald A. DeSantis, William V. Stephenson and Einar M. Rod, and each of them, his true and lawful attorneys-in-fact and agents, for him and in his name, place and stead, in any and all capacities, to sign one or more amendments to this Registration Statement on Form S-8 under the Securities Act, including post-effective amendments and other related documents, and to file the same with the Commission under said Act, hereby granting power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully as 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 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 shown and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ W. V. Stephenson Chairman, President, Chief Executive January 23, 1998 - --------------------- Officer and Director (Principal Executive William V. Stephenson Officer) /s/ R. F. Bernstock Director January 23, 1998 - -------------------- R. F. Bernstock /s/ Alfred E. Dudley Director January 23, 1998 - --------------------- Alfred E. Dudley /s/ J. C. Ferries Director January 23, 1998 - --------------------- J. C. Ferries Director - --------------------- James R. McManus /s/ James R. Maher Director January 23, 1998 - --------------------- James R. Maher /s/ Denis Newman Director January 23, 1998 - --------------------- Denis Newman /s/ Thomas H. Rowland Executive Vice President and Director January 23, 1998 - --------------------- Thomas H. Rowland /s/ Ervin R. Shames Director January 23, 1998 - --------------------- Ervin R. Shames /s/ Robert G. Tobin Director January 23, 1998 - --------------------- Robert G. Tobin /s/ Donald A. DeSantis Senior Vice President and Chief Financial January 23, 1998 - ----------------------- Officer and Director (Principal Executive Donald A. DeSantis Officer)
II-7 EXHIBIT INDEX Exhibit No. Description of Exhibit ----------- ---------------------- Exhibit 4(a) Restated Certificate of Incorporation of the Corporation, as amended. Incorporated by reference to Exhibit 4(a) to the Registrant's Registration Statement on Form S-8 filed by the Registrant on February 3, 1997. Exhibit 4(b) By-Laws of the Corporation, as amended. Incorporated by reference to Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the fiscal year ended June 30, 1995 (Commission File No. 1-10395). Exhibit 4(c) Indenture dated as of March 1, 1997 between the Registrant and The Bank of New York, relating to the 7.25% Senior Notes due 2007. Incorporated by reference to Exhibit 4.1 to the Registrant's Registration Statement on Form S-4 filed by the Registrant on April 24, 1997. Exhibit 4(d) Purchase Agreement dated as of March 5, 1997 among the Registrant, Bear Stearns & Co. Inc., TD Securities (USA) Inc., Credit Lyonnais Securities (USA) Inc. and First Union Capital Markets Corp., relating to the 7.25% Senior Notes due 2007. Incorporated by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-4 filed by Company on April 24, 1997. Exhibit 4(e) Registration Rights Agreement dated as of March 5, 1997 among the Registrant, Bear Stearns & Co. Inc., TD Securities (USA) Inc., Credit Lyonnais Securities (USA) Inc. and First Union Capital Markets Corp., relating to the 7.25% Senior Notes due 2007. Incorporated by reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-4 filed by Company on April 24, 1997. Exhibit 4(f) Rights Agreement, dated as of March 22, 1996, between the Registrant and Continental Stock Transfer & Trust Company, as Rights Agent, including the form of Certificate of Designation, Preferences and Rights of Junior Participating Preferred Stock, Series A., attached thereto as Exhibit A, the form of Rights Certificate attached thereto as Exhibit B and the Summary of Rights attached thereto as Exhibit C. Incorporated by reference to Exhibit 1.1 to the Registrant's Registration Statement on Form 8-A dated March 22, 1996. Exhibit 5* Opinion of Einar M. Rod, General Counsel of the Corporation, as to the legality of the securities being registered. Exhibit 15 Letter re unaudited interim financial information of KPMG Peat Marwick LLP (included in Consent of KPMG Peat Marwick LLP filed as Exhibit 23(a)). Exhibit 23(a)* Consent of KPMG Peat Marwick LLP. Exhibit 23(b) Consent of Einar M. Rod, General Counsel of the Corporation (included in his opinion filed as Exhibit 5). Exhibit 24 Power of Attorney (included on the signature page to this Registration Statement). Exhibit 99 First Brands Corporation 1998 Performance Stock Option and Incentive Plan . Incorporated by reference to Exhibit A to the Definitive Proxy Statement for Annual Meeting of Stockholders, filed by the Corporation on September 26, 1997 (Commission File No. 1-10395). * Filed herewith EX-5 2 EXHIBIT 5 EXHIBIT 5 February 2, 1998 The Board of Directors First Brands Corporation 83 Wooster Heights Road Danbury, Connecticut 06813-1911 Re: First Brands Corporation Registration Statement on Form S-8 (No. 333- ) -------------------------------------------- Dear Sirs: I am General Counsel to First Brands Corporation, a Delaware corporation (the "Company"), and have acted as its counsel in connection with its Registration Statement on Form S-8 (the "Registration Statement") being filed on the date hereof and relating to 1,800,000 shares of Common Stock, $0.01 par value per share (the "Common Stock"), of the Company and the related Preferred Stock Purchase Rights (such shares of Common Stock and the related Preferred Stock Purchase Rights, collectively, the "Shares") which may be offered and sold pursuant to the First Brands Corporation 1998 Performance Stock Option and Incentive Plan (the "Plan") of the Company. In that connection, I have examined originals, or copies certified or otherwise identified to my satisfaction, of such documents, corporate records and other instruments as I have deemed necessary or appropriate for the purpose of rendering this opinion, including: (a) the Restated Certificate of Incorporation of the Company, as amended to the date hereof; (b) the By-laws of the Company, as amended to the date hereof; (c) the Registration Statement; (d) the resolution adopted by the Stockholders of the Company ratifying the adoption of the Plan as set forth in Exhibit A to the Proxy Statement for the Annual Meeting of Stockholders held on October 24, 1997; and (e) the Plan. Based upon the foregoing, and assuming that the exercise price of any option granted under the Plan shall not be less than the par value of the Common Stock, I am of the opinion that the Shares have been duly authorized and will, when issued upon the exercise of options in accordance with provisions of the Plan, be validly issued, fully paid and nonassesable. I hereby consent to the reference to me under the caption "Interest of Named Experts and Counsel" in the Registration Statement, to the reference to me under the caption "Legality" in the documents constituting the Prospectus relating to the Registration Statement, and to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, /s/ Einar M. Rod ---------------- Einar M. Rod General Counsel EMR/sc -2- EX-23 3 EXHIBIT 23(A) Exhibit 23(a) INDEPENDENT AUDITORS' CONSENT The Board of Directors First Brands Corporation We consent to the incorporation by reference in this Registration Statement on Form S-8 of First Brands Corporation pertaining to the First Brands Corporation 1998 Performance Stock Option and Incentive Plan of our reports dated August 1, 1997 relating to the consolidated balance sheets of First Brands Corporation and Subsidiaries as of June 30, 1997 and 1996, and the related consolidated statements of income, stockholders' equity and cash flows for each of the years in the three-year period ended June 30, 1997, and the related schedule, which reports appear in the June 30, 1997 annual report on Form 10-K of First Brands Corporation, and to the reference to our firm under the heading "Experts" in Form S-8. Further, we acknowledge our awareness of the use therein of our review report dated November 12, 1997, related to our review of interim financial information. Pursuant to Rule 436(c) under the Securities Act of 1933, such review report is not considered a part of a registration statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of section 7 and 11 of the Act. /s/ KPMG Peat Marwick LLP New York, New York February 2, 1998 -----END PRIVACY-ENHANCED MESSAGE-----