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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 21, 2002
REGISTRATION 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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WALTER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
<Table>
DELAWARE 13-3429953
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation
or organization)
4211 W. BOY SCOUT BOULEVARD 33607
TAMPA, FLORIDA (Zip Code)
(Address of principal executive offices)
</Table>
WALTER INDUSTRIES EXECUTIVE DEFERRED COMPENSATION PLAN
(Full title of the Plan)
------------------------
WILLIAM F. OHRT
EXECUTIVE VICE PRESIDENT AND PRINCIPAL FINANCIAL OFFICER
WALTER INDUSTRIES, INC.
4211 W. BOY SCOUT BOULEVARD
TAMPA, FLORIDA 33607
(813) 871-4160
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPY TO:
STEVEN DELLA ROCCA, ESQ.
Latham & Watkins
885 Third Avenue
New York, New York 10022
(212) 906-1200 (212) 751-4864 (fax)
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CALCULATION OF REGISTRATION FEE
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<Caption>
AMOUNT OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SHARES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE BE REGISTERED(1) REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE(2)
n/a n/a n/a n/a None
</Table>
(1) No shares of Walter Industries, Inc. capital stock are to be issued under
the Plan. However, pursuant to Rule 416(c) of the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers an
indeterminate amount of interests to be offered pursuant to the Plan.
(2) Pursuant to Rule 457(h)(2) under the Securities Act, no fee is required with
respect to the registration of plan interests.
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PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") by Walter Industries, Inc., a Delaware corporation (the
"Company"), are incorporated as of their respective dates in this Registration
Statement by reference:
A. The Company's Amended Annual Report on Form 10-K-405A filed January 28,
2002 (File No. 001-13711), for the fiscal year ended December 31, 2000
(amending the original Form 10-K filed March 20, 2001).
B. The Company's Amended Quarterly Report on Form 10-Q/A filed January 28,
2002 (File No. 001-13711), for the quarterly period ended March 31, 2001
(amending the original Form 10-Q filed May 15, 2001).
C. The Company's Amended Quarterly Report on Form 10-Q/A filed January 28,
2002 (File No. 001-13711), for the quarterly period ended June 30, 2001
(amending the original Form 10-Q filed August 14, 2001).
D. The Company's Amended Quarterly Report on Form 10-Q/A filed January 28,
2002 (File No. 001-13711), for the quarterly period ended September 30,
2001 (amending the original Form 10-Q filed November 14, 2001).
All documents filed by the Company or by the Plan pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act 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 are incorporated
by reference in this Registration Statement and are 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 is also 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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware ("DGCL")
provides that a corporation has the power to indemnify any director or officer,
or former director or officer, 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 the expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the defense of any action by
reason of being or having been directors or officers, if such person shall have
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 person had no reasonable cause to
believe his conduct was unlawful, except that, if such action shall be in the
right of the corporation, no such indemnification shall be provided as to any
claim, issue or matter as to which such person shall have been judged to have
been liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware (the "Court of Chancery"), or any court in
such suit or action was brought, shall determine upon application that, despite
the liability judgment, but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the Court of Chancery or such other court shall deem proper.
The Company's Certificate of Incorporation provides that the Company shall
indemnify directors and officers made party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, including appeals, to the fullest extent permitted by the laws of
the State of Delaware. Such indemnification shall continue after an individual
ceases to be an officer or director and shall inure to the benefit of the heirs,
executors and administrators of such person. The Company's Certificate of
Incorporation also provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except to the extent such exemption from
liability or limitation thereof is not permitted under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended.
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.
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
2
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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.
The indemnification rights conferred by the Certificate of Incorporation of
the Company are not exclusive of any other right to which a person seeking
indemnification may otherwise be entitled. The Company may also provide
liability insurance for the directors and officers for certain losses arising
from claims or charges made against them while acting in their capacities as
directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
A list of exhibits included as part of this Registration Statement is set
forth on the Exhibit Index appearing elsewhere herein and is incorporated herein
by reference.
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;
(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 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) shall not
apply to information contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d)
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of the Securities Exchange Act of 1934, as amended (the "Exchange Act");
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 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 that 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 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 Securities and
Exchange 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 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 Tampa, State of Florida, on February 21, 2002.
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WALTER INDUSTRIES, INC.
By: /s/ WILLIAM F. OHRT
-----------------------------------------
William F. Ohrt
Executive Vice President and
Chief Financial Officer
</Table>
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons on behalf of the
registrant and in the capacities indicated as of February 21, 2002.
<Table>
<Caption>
SIGNATURE TITLE
--------- -----
*
------------------------------------------- Chairman of the Board of Directors
Donald N. Boyce
/s/ DON DEFOSSET
------------------------------------------- President and Chief Executive
Don Defosset Officer (Principal Executive Officer)
/s/ WILLIAM F. OHRT Executive Vice President and
------------------------------------------- Chief Financial Officer (Principal Financial
William F. Ohrt Officer)
/s/ CHARLES E. CAUTHEN
------------------------------------------- Senior Vice President
Charles E. Cauthen (Principal Accounting Officer) Director
*
------------------------------------------- Director
Robert F. Amter
*
------------------------------------------- Director
Howard L. Clark, Jr.
*
------------------------------------------- Director
Perry Golkin
*
------------------------------------------- Director
James L. Johnson
*
------------------------------------------- Director
Scott C. Nuttall
</Table>
5
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<Caption>
SIGNATURE TITLE
--------- -----
*
------------------------------------------- Director
Wayne W. Robinson
*
------------------------------------------- Director
Neil A. Springer
*
------------------------------------------- Director
Michael T. Tokarz
</Table>
<Table>
*By /s/ WILLIAM F. OHRT
--------------------------------------
William F. Ohrt
ATTORNEY-IN-FACT
</Table>
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Walter Industries Executive Deferred Compensation Plan 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 February 21, 2002.
<Table>
WALTER INDUSTRIES EXECUTIVE DEFERRED
COMPENSATION PLAN
By: /s/ WILLIAM F. OHRT
-----------------------------------------
William F. Ohrt,
as Plan Administrator, acting
on behalf of the Company.
</Table>
6
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EXHIBIT INDEX
<Table>
4(a) Amended and Restated Certificates of Incorporation of the
Company (incorporated herein by reference to Exhibit 3.1
to the Company's Quarterly Report on Form 10-Q, filed on
January 14, 1999, File No. 001-13711).
4(c) Walter Industries Executive Deferred Compensation Plan
23(a) Consent of Independent Accountants.
24(a) Power of Attorney.
</Table>