As Filed with the Securities and Exchange Commission on April 21, 1998
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
SEALED AIR CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 65-0654331
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Park 80 East
Saddle Brook, New Jersey 07663
(Address, including zip code, of Registrant's principal executive offices)
W. R. Grace & Co.
1986 Stock Incentive Plan
W. R. Grace & Co.
1989 Stock Incentive Plan
W. R. Grace & Co.
1994 Stock Incentive Plan
W. R. Grace & Co.
1996 Stock Incentive Plan
(Full Title of the Plans)
H. Katherine White, Esq.
Assistant General Counsel and Secretary
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07663
(201) 791-7600
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered Per Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.10 per share 489,307 $37.02 $18,114,146 $5,344
- ----------------------------------------------------------------------------------------------------------------------------
1. Computed pursuant to Rule 457(h) under the Securities Act of 1933 ("1933
Act") solely for the purpose of determining the registration fee. The
proposed maximum aggregate offering price is computed upon the basis of the
weighted average of the prices at which the options may be exercised.
This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to antidilution provisions.
==============================================================================
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant (File No.
1-12139) with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) Annual Report on Form 10-K of W. R. Grace & Co. for the year
ended December 31, 1997;
(b) Current Report on Form 8-K of W. R. Grace & Co. dated
February 9, 1998;
(c) Current Report on Form 8-K of Sealed Air Corporation
(formerly named W. R. Grace & Co.) dated March 31, 1998;
(d) Current Report on Form 8-K of Sealed Air Corporation
(formerly named W. R. Grace & Co.) dated April 2, 1998;
(e) the description of the Registrant's common stock contained
in the Registrant's Joint Proxy Statement/Prospectus filed as part of
the Registrant's Registration Statement on Form S-4, declared effective
on February 13, 1998.
All documents filed by the Registrant with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, subsequent to 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 herein by reference and to be a part hereof from the respective
date of filing of each such document.
Item 4. Description of Securities
The securities to be offered are registered under Section 12(b)
of the 1934 Act.
Item 5. Interest of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware (the "General Corporation Law") provides that: (1) under certain
circumstances a corporation may indemnify a director or officer made party to,
or threatened to be made party to, any civil, criminal, administrative or
investigative action, suit or proceeding (other than an action by or in the
right of the corporation) because such person is or was a director, officer,
employee or agent of the corporation, or because such person is or was so
serving another enterprise at the request of the corporation, against
expenses, judgments, fines and amounts paid in settlement reasonably incurred
by such person in connection with such action, suit or proceeding, if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to criminal cases, had no reasonable cause to believe such person's
conduct was unlawful; (2) under certain circumstances a corporation may
indemnify a director or officer made party to, or threatened to be made party
to, any action or suit by or in the right of the corporation for judgment in
favor of the corporation because such person is or was a director, officer,
employee or agent of the corporation, or because such person is or was so
serving another enterprise at the request of the corporation, against expenses
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation; and (3) a director or officer shall be
indemnified by the corporation against expenses reasonably incurred by such
person in connection with and to the extent that such person has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the preceding clauses, or in defense of any claim,
issue or matter therein.
Under Article ELEVENTH of the Registrant's Amended and Restated
Certificate of Incorporation and Article 8 of the Registrant's By-laws,
indemnification of directors and officers is provided for to the fullest
extent permitted under the General Corporation Law. Article TWELFTH of the
Registrant's Amended and Restated Certificate of Incorporation eliminates the
liability of directors for monetary damages for breach of fiduciary duty as
directors, except for liability (1) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (3) under Section 174 of the General Corporation Law (which relates to
the payment of unlawful dividends or unlawful stock purchases or redemptions),
or (4) for any transaction from which the director derived an improper
personal benefit. The General Corporation Law, the Registrant's Amended and
Restated Certificate of Incorporation and the By-laws of the Registrant permit
the purchase by the Registrant of insurance for indemnification of directors
and officers. The Registrant currently maintains directors and officers
liability insurance.
The foregoing summary of Section 145 of the General Corporation
Law, Articles ELEVENTH and TWELFTH of the Amended and Restated Certificate of
Incorporation of the Registrant and Article 8 of the By-laws of the Registrant
is qualified in its entirety by reference to the relevant provisions of
Section 145, the relevant provisions of the Registrant's Amended and Restated
Certificate of Incorporation, which are incorporated herein by reference to
Exhibit 3.1 to the Registrant's Current Report on Form 8-K dated March 31,
1998, and the relevant provisions of the Registrant's By-laws, which are
incorporated herein by reference to Exhibit 3.2 to the Registrant's Current
Report on Form 8-K dated March 31, 1998.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(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;
(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 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration settlement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of 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 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Town of Saddle Brook, State of New Jersey,
on this 20th day of April, 1998.
SEALED AIR CORPORATION
By: /s/ T. J. Dermot Dunphy
------------------------------------------
Name: T. J. Dermot Dunphy
Title: Chairman of the Board, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose individual
signature appears below hereby authorizes T. J. Dermot Dunphy, William V.
Hickey and H. Katherine White, and each of them, as attorneys-in-fact,
with full power of substitution, to execute, in the name and on behalf of
each such person and in any and all capacities, and to file any amendment
to this Registration Statement (and all other registration statements to
which the prospectus related to this Registration Statement also relates
pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, as amended), including any and all post-effective
amendments.
Signature Title Date
--------- ----- ----
/s/ T. J. Dermot Dunphy Chairman of the Board, April 21, 1998
- ---------------------------- Chief Executive Officer and
(T.J. Dermot Dunphy) Director
/s/ Horst Tebbe Vice President-Finance and April 21, 1998
- ---------------------------- Chief Financial Officer
(Horst Tebbe) (Principal Financial Officer)
/s/ Jeffrey S. Warren Controller April 21, 1998
- ---------------------------- (Principal Accounting
(Jeffrey S. Warren) Officer)
Director
- ----------------------------
(Hank Brown)
/s/ John K. Castle Director April 21, 1998
- ----------------------------
(John K. Castle)
Director
- ----------------------------
(Christopher Cheng)
/s/ Lawrence R. Codey Director April 21, 1998
- ----------------------------
(Lawrence R. Codey)
/s/ Charles F. Farrell, Jr. Director April 21, 1998
- ----------------------------
(Charles F. Farrell, Jr.)
/s/ David Freeman Director April 21, 1998
- ----------------------------
(David Freeman)
Director
- ----------------------------
(Virginia A. Kamsky)
/s/ Alan H. Miller Director April 21, 1998
- ----------------------------
(Alan H. Miller)
Director
- ----------------------------
(John E. Phipps)
/s/ R. L. San Soucie Director April 21, 1998
- ----------------------------
(R. L. San Soucie)
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated
by reference to the Registrant's Current Report on Form 8-K dated March 31, 1998).
4.2 Amended and Restated By-laws of the Registrant (incorporated by reference to the
Registrant's Current Report on Form 8-K dated March 31, 1998).
5.1 Opinion of Davis Polk & Wardwell.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Davis Polk & Wardwell (included in Exhibit 5.2).
24.1 Power of Attorney (included in Signature Page).
EXHIBIT 5.1
[Letterhead of Davis Polk & Wardwell]
April 21, 1998
Sealed Air Corporation
Park 80 East
Saddle Brook, NJ 07663
Ladies and Gentlemen:
We have acted as special counsel to Sealed Air Corporation (the
"Company") in connection with the Company's Registration Statement on Form S-8
to which this opinion is filed as an exhibit (the "Registration Statement")
which registers under the Securities Act of 1933, as amended, 489,307 shares
of common stock of the Company, par value $0.10 per share (the "Shares"),
which may be purchased upon excercise of options (the "Options") granted
under the W. R. Grace & Co. 1986 Stock Incentive Plan, the W. R. Grace
& Co. 1989 Stock Incentive Plan, the W. R. Grace & Co. 1994 Stock
Incentive Plan and the W. R. Grace & Co. 1996 Stock Incentive Plan.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates and other instruments, and have conducted such other
investigations of fact and law, as we have deemed necessary or advisable for
the purposes of this opinion.
In rendering this opinion we have assumed that prior to the
issuance of any of the Shares the Registration Statement, as then amended,
will have become effective under the Securities Act.
On the basis of the foregoing, we are of the opinion that the
Shares to which the Registration Statement relates have been duly authorized,
and that, when issued and delivered in accordance with the terms and
conditions of the Options, will be validly issued, fully paid and non-
assessable.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York and the
General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 23.1
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 February 3, 1998, except for
"Packaging Business Transaction," as discussed in Notes 1 and 3, as to which
the date is March 23, 1998, appearing on page F-3 of the Annual Report on Form
10-K for the year ended December 31, 1997 of Sealed Air Corporation (formerly
named W. R. Grace & Co.) We also consent to the incorporation by reference of
our report on the Financial Statement Schedule, which appears on page F-2 of
the Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
Ft. Lauderdale, Florida
April 21, 1998
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
Sealed Air Corporation
We consent to incorporation by reference in this registration statement on
Form S-8 of Sealed Air Corporation of our report dated January 20, 1998,
except for note 2 which is as of March 23, 1998, relating to the
consolidated balance sheets of Sealed Air Corporation and subsidiaries as
of December 31, 1997 and 1996, and the related consolidated statements of
earnings, shareholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1997, which report appears in the Form
8-K of Sealed Air Corporation dated March 31, 1998.
/s/ KPMG Peat Marwick LLP
Short Hills, New Jersey
April 21, 1998
