-----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, AZ2zMxoiUjl84w0mU+SpyZfnmkDAxU25vzIt6AbDx2Z1snQGDj7Thkt2SUJW18bM 22JIMbLfR22JqGXKar3GXQ== 0000950112-96-000980.txt : 19960402 0000950112-96-000980.hdr.sgml : 19960402 ACCESSION NUMBER: 0000950112-96-000980 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960401 EFFECTIVENESS DATE: 19960420 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: WALTER INDUSTRIES INC /NEW/ CENTRAL INDEX KEY: 0000837173 STANDARD INDUSTRIAL CLASSIFICATION: GEN BUILDING CONTRACTORS - RESIDENTIAL BUILDINGS [1520] IRS NUMBER: 133429953 STATE OF INCORPORATION: DE FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-02095 FILM NUMBER: 96542137 BUSINESS ADDRESS: STREET 1: 1500 N DALE MABRY HGWY CITY: TAMPA STATE: FL ZIP: 33607 BUSINESS PHONE: 8138714811 MAIL ADDRESS: STREET 1: 1500 NORTH MABRY HGWY STREET 2: 1500 NORTH MABRY HGWY CITY: TAMPA STATE: FL ZIP: 33607 FORMER COMPANY: FORMER CONFORMED NAME: HILLSBOROUGH HOLDINGS CORP DATE OF NAME CHANGE: 19910814 S-8 1 WALTER INDUSTRIES, INC. As filed with the Securities and Exchange Commission on April 1, 1996 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ Form S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ------------ Walter Industries, Inc. (Exact Name of Registrant as Specified in its Charter) Delaware 13-3429953 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 1500 North Dale Mabry Highway Tampa, FL 33607 (Address, Including Zip Code, of Registrant's Principal Executive Office) Walter Industries, Inc. Employee Stock Purchase Plan Walter Industries, Inc. Long-Term Incentive Stock Plan (Full title of the Plans) William H. Weldon Executive Vice President and Chief Financial Officer Walter Industries, Inc. 1500 North Dale Mabry Highway Tampa, FL 33607 (813) 871-4523 (Name, Address and Telephone Number, Including Area Code, of Agent For Service) ------------ Copy to: Peter J. Gordon, Esq. Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017-3909 ------------ CALCULATION OF REGISTRATION FEE ================================================================================ Proposed Proposed Maximum Maximum Title of Offering Aggregate Amount of Securities to Amount to Price Offering Registration be Registered be Registered Per Share Price Fee - -------------------------------------------------------------------------------- Common Stock, par value $.01 per share(3) 3,000,000 13.875(1) $41,625,000(1) $14,353(1) - -------------------------------------------------------------------------------- Common Stock, par value $.01 per share(4) 500,000 13.625(2) $6,812,500(2) $2,349(2) ================================================================================ (1) With respect to 1,500,000 shares of Common Stock subject to options, the registration fee is based on the exercise price of $14.125 and with respect to the remaining 1,500,000 shares, the registration fee is based on the average of the high and low sales prices of the Common Stock on March 25, 1996 as reported on the Nasdaq National Market. (2) Estimated solely for calculating the registration fee and calculated pursuant to Rule 457(c), based on the average of the high and low sale prices of the Common Stock on March 25, 1996 as reported on the Nasdaq National Market. (3) Represents Common Stock issuable under the Walter Industries, Inc. Long- Term Incentive Stock Plan. (4) Represents Common Stock issuable under the Walter Industries, Inc. Employee Stock Purchase Plan. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission by Walter Industries, Inc. (the "Company") are hereby incorporated in this Registration Statement by reference: (a) Prospectus dated October 11, 1995, as supplemented on November 9, 1995, January 12, 1996 and February 16, 1996 (the "Prospectus") filed as part of the Company's Registration Statement on Form S-1, file no. 33-59013. (b) Quarterly Reports on Form 10-Q dated November 9, 1995 and January 12, 1996. (c) Current Report on Form 8-K dated January 22, 1996. (d) the description of the Company's Common Stock contained in the Prospectus. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement 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 hereof from the date of filing 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 contained herein or in any other subsequently filed document which also is or is deemed to be 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 applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonable incurred by such person in connection with such action, suit or proceeding, provided that such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, and, for criminal proceedings, had no reasonably cause to believe his conduct was illegal. A Delaware corporation may indemnify officers and directors against expenses (including attorneys' fees) in connection with the defense or settlement of an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director actually and reasonably incurred. Article IV of the By-laws of the Company provides for indemnification of its officers and directors to the fullest extent permitted by Section 145 of the DGCL. 2 Section 102(b)(7) of the DGCL provides that a Delaware corporation may eliminate or limit the personal liability of a director to a Delaware corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL relating to the unlawful payment of a dividend or an unlawful stock purchase or redemption or (iv) for any transaction from which the director derived an improper personal benefit. Article 6 of the Restated Certificate of Incorporation of the Company provides for the elimination of personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except as otherwise provided by the DGCL. The Company has entered into a Directors and Officers Indemnification Agreement which provides that directors and officers shall be indemnified to the fullest extent permitted by applicable law and obligates the Company to indemnify the directors and officers of the Company (a) if any director or officer is or may become a party to any proceeding against all expenses reasonably incurred by such director or officer in connection with the defense or settlement of such proceeding, but only if such director or officer acted in good faith and in a manner which such director or officer reasonably believed to be in or not opposed to the best interests of the Company, and in the case of a criminal action or proceeding, in addition, only if such director or officer had no reasonable cause to believe that his or her conduct was unlawful, (b) if a director or officer is or may become a party to any proceeding by or in the name of the Company to procure a judgment in its favor against all expenses reasonably incurred by such director or officer in connection with the defense or settlement of such proceeding, but only if such director or officer acted in good faith and in a manner which such director or officer reasonably believed to be in or not opposed to the best interests of the Company, except no indemnification for expenses need be made in respect of any claim in which such director or officer shall have been adjudged liable to the Company unless a court in which the proceeding is brought determines otherwise and (c) if a director or officer has been successful on the merits or otherwise in defense of any proceeding or claim. The Registration Rights Agreement dated as of March 17, 1995 and the Registration Rights Agreement dated as of September 12, 1995 between the Company and the shareholders named therein (the "Holders") each requires the Company, on the one hand, and the Holders referred to therein, on the other hand, under certain circumstances, to indemnify each other and, in the case of the Company's indemnification obligations, each other person who participates as an underwriter in an offering of Common Stock thereunder, and each other person who controls such parties and/or underwriters and their respective directors, officers, partners, agents and affiliates against certain liabilities, including liabilities under the Securities Act of 1933, incurred in connection with each registration of securities pursuant to such registration rights agreement. Item 7. Exemption from Registration Claimed. Not applicable Item 8. Exhibits. (5) Opinion of Simpson Thacher & Bartlett 23(a) Consent of Price Waterhouse LLP 23(b) Consent of Simpson Thacher & Bartlett (included in their opinion filed as Exhibit 5 hereto) 24 Power of Attorney 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; 3 (ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information set forth in this Registration Statement; provided, however, that the undertakings set forth in paragraphs (i) and (ii) above do not apply if 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 Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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. (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 this Registration Statement 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. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or 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 against the Registrant 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 policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Walter Industries, Inc. 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 Tampa, State of Florida on this 29th day of March, 1996. WALTER INDUSTRIES, INC. By /s/ WILLIAM H. WELDON ------------------------- Name: William H. Weldon Title: Executive Vice President and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on this 29th day of March, 1996. Signature Title --------- ----- * Chairman Emeritus and Director ------------------------------- James W. Walter * Chairman of the Board, Chief ------------------------------- Executive Officer and Director G. Robert Durham (Principal Executive Officer) * President, Chief Operating ------------------------------- Officer and Director Kenneth E. Hyatt * Executive Vice President and ------------------------------- Chief Financial Officer William H. Weldon (Principal Financial Officer) Vice President and Controller ------------------------------- and Chief Accounting Officer Frank A. Hult (Principal Accounting Officer) * Director ------------------------------- Howard L. Clark, Jr. * Director ------------------------------- James B. Farley * Director ------------------------------- Eliot M. Fried * Director ------------------------------- Perry Golkin * Director ------------------------------- James L. Johnson * Director ------------------------------- Michael T. Tokarz By /s/ WILLIAM H. WELDON ----------------------------- William H. Weldon Attorney-in-fact 5 EXHIBIT INDEX Sequential Exhibit Number Description of Exhibit Page Number 5 Opinion of Simpson Thacher & Bartlett regarding legality of the securities being registered 23(a) Consent of Price Waterhouse LLP 23(b) Consent of Simpson Thacher & Bartlett (included in the opinion filed as Exhibit 5) 24 Power of Attorney EX-5 2 Exhibit 5 [SIMPSON THACHER & BARTLETT LETTERHEAD] March 29, 1996 Walter Industries, Inc. 1500 North Dale Mabry Highway Tampa, FL 33607 We have acted as special counsel to Walter Industries, Inc., a Delaware corporation (the "Company"), in connection with the proposed issuance of up to 3,000,000 shares (the "Shares") of Common Stock, par value $0.01 per share, of the Company under the Company's Long-Term Incentive Stock Plan (the "Plan") and the registration of the shares on the Registration Statement on Form S-8 (the "Registration Statement"), filed by the Company under the Securities Act of 1933, as amended. We have examined the Registration Statement and the prospectus related to the Plan. In addition, we have examined, and have relied as to matters of fact upon, original or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such other and further investigations, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth. Walter Industries, Inc. -2- March 29, 1996 In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, 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. Based upon the foregoing, and subject to the qualifications and limitations stated herein, we hereby advise you that in our opinion the Shares have been duly authorized by the Company and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. We are members of the Bar of the State of New York and we do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the Delaware General Corporation Law. This opinion is rendered to you in connection with the above described transactions. This opinion may not be relied upon by you for any other purpose, or relied upon by or furnished to, any other person, firm or corporation without our prior written consent. We hereby consent to the filing of this opinion of counsel as Exhibit 5 to the Registration Statement. Very truly yours, /s/ SIMPSON THACHER & BARTLETT SIMPSON THACHER & BARTLETT EX-23.(A) 3 Exhibit 23(a) ------------- Consent of Independent Certified Public Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated July 12, 1995, which appears on page F-2 of the Prospectus constituting part of the Registration Statement on Form S-1 relating to the consolidated financial statements of Walter Industries, Inc. and its subsidiaries, which appears in such Prospectus. /s/ Price Waterhouse LLP PRICE WATERHOUSE LLP Tampa, Florida March 28, 1996 EX-24 4 Exhibit 24 ---------- POWER OF ATTORNEY ----------------- The undersigned Directors of Walter Industries, Inc., a Delaware corporation which proposes to file with the Securities and Exchange Commission, Washington, D.C. under the provisions of the Securities Act of 1933, as amended, a Registration Statement on Form S-8 with respect to certain shares of its common stock to be purchased in the open market for the account of employees who are participants in the Corporation's Employee Stock Purchase Plan and for shares of its common stock to be sold to certain employees in connection with the Corporation's 1995 Long-Term Incentive Stock Plan, hereby constitutes and appoints Donald M. Kurucz, Edward A. Porter and W.H. Weldon, and each of them as his attorney, with full power of substitution and resubstitution, for and in his name, place and stead, to sign and file the proposed Registration Statement and any and all amendments and exhibits thereto, and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to such securities or such registration, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary to be done in the premises, hereby ratifying and approving the acts of such attorney or any such substitute. IN WITNESS WHEREOF, the undersigned has hereunto set his hand at Tampa, Florida this 14th day of March, 1996. /s/ J.W. Walter /s/ J. B. Farley -------------------------- -------------------------- /s/ M.T. Tokarz /s/ H.L. Clark -------------------------- -------------------------- /s/ James L. Johnson /s/ G. R. Durham -------------------------- -------------------------- /s/ Perry Golkin /s/ K.E. Hyatt -------------------------- -------------------------- /s/ Eliot Fried -------------------------- -------------------------- -----END PRIVACY-ENHANCED MESSAGE-----