As Filed with the Securities and Exchange Commission on July 22, 1997
Registration No. 333-29541
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
Post-Effective Amendment No. 1
on Form S-8
to
Form S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933*
----------------------
DURCO INTERNATIONAL INC.
(to be renamed Flowserve Corporation)
(Exact name of registrant as specified in its charter)
New York 31-0267900
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3100 Research Boulevard
Dayton, Ohio, 45402
(Address of Principal Executive Offices)
BW/IP, Inc. 1996 Long-Term Incentive Plan
BW/IP, Inc. 1996 Directors Stock and Deferred Compensation Plan
BW/IP International, Inc. 1992 Long-Term Incentive Plan
BWIP Holding, Inc. Non-Employee Directors' Stock Option Plan
BW/IP International, Inc. Capital Accumulation Plan
(Full title of the plans)
Ronald F. Shuff, Esq.
Vice President, Secretary and General Counsel
Durco International Inc.
3100 Research Boulevard
Dayton, Ohio 45420
(937) 476-1000
(Name, address and telephone number, including area code, of agent for service)
- ------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES: PROMPTLY
AFTER FILING OF THIS POST-EFFECTIVE AMENDMENT.
----------------------
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of each class of Amount to offering price per aggregate offering Amount of
securities to be registered be registered[F1] security[F2] price[F2] registration fee[F3]
Common Stock, par value $1.25 per share[F4] 19,265,580 $28.25 $544,252,635 $164,925
============================================================================================================
(F1) Based on the maximum number of shares to be issued in connection
with the Merger, calculated as the product of (a) 26,054,532, the
aggregate number of shares of BW/IP, Inc. Common Stock, par value
$0.01 per share ("BW/IP Common Stock") outstanding on a fully
diluted basis as of June 17, 1997 and (b) an exchange ratio of
0.6968 shares of Common Stock for each share of BW/IP Common
Stock, plus up to an additional 1,110,782 shares for which a
registration fee has not previously been paid that are issuable
upon the exercise of stock options, the lapse of restrictions on
certain restricted stock awards or in satisfaction of certain
deferred compensation obligations under the Plans (as defined
herein) and the 401(k) Plan (as defined herein).
[F2] Estimated solely for purposes of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended
(the "Securities Act"), and calculated pursuant to Rule 457(f) under
the Securities Act. Pursuant to Rule 457(f)(1) under the Securities
Act, the proposed maximum aggregate offering price of the Common Stock
was calculated in accordance with Rule 457(c) under the Securities Act
as: (a) $19.6875, the average of the high and low prices per share of
BW/IP Common Stock on June 16, 1997 as reported on the New York Stock
Exchange Composite Transaction Tape, multiplied by (b) 26,054,532, the
aggregate number of shares of BW/IP Common Stock outstanding on a
fully diluted basis as of June 17, 1997.
[F3] Pursuant to Rule 457(b) under the Securities Act, $155,439 of the
registration fee was paid as of June 19, 1997 in connection with the
filing of preliminary proxy materials on May 15, 1997 and the original
registration statement on June 19, 1997.
[F4] This Registration Statement also covers the associated preferred stock
purchase rights (the "Rights") issued pursuant to a Rights Agreement
dated as of August 1, 1986 and amended as of August 1, 1996, between
the Registrant and National City Bank, as Rights Agent. Prior to the
occurrence of certain events, the Rights will not be exercisable or
evidenced separately from the Registrant's Common Stock.
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4
Registration Statement pursuant to the procedure described herein. See
"Introductory Statement."
===========================================================================
INTRODUCTORY STATEMENT
Durco International Inc. ("Durco" or the "Registrant") hereby
amends its Registration Statement on Form S-4 (No. 333-29541) (the "Form
S-4") by filing this Post-Effective Amendment No. 1 on Form S-8 (the
"Post-Effective Amendment" or the "Registration Statement") relating to the
sale of up to 2,779,756 shares of Common Stock, par value $1.25 per share,
of Durco ("Durco Common Stock") issuable upon the exercise of stock
options, the lapse of restrictions on certain restricted stock awards or in
satisfaction of certain deferred compensation obligations under (i) the
BW/IP, Inc. 1996 Long-Term Incentive Plan, (ii) the BW/IP, Inc. 1996
Directors Stock and Deferred Compensation Plan, (iii) the BW/IP
International, Inc. 1992 Long-Term Incentive Plan and (iv) the BWIP
Holding, Inc. Non-Employee Directors' Stock Option Plan (collectively, the
"Plans") and related to the investment of funds under the BW/IP
International, Inc. Capital Accumulation Plan (the "401(k) Plan").
On July 22, 1997, Bruin Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Durco, was merged with and into BW/IP,
Inc., a Delaware corporation ("BW/IP"). As a result of such merger (the
"Merger"), BW/IP became a wholly owned subsidiary of Durco and each
outstanding share (other than shares owned by Durco or BW/IP or their
subsidiaries) of common stock, par value $.01 per share ("BW/IP Common
Stock") has been converted into the right to receive 0.6968 shares of Durco
Common Stock. In addition, each outstanding stock-based award granted
pursuant to the Plans will no longer be settled in shares of BW/IP Common
Stock, but instead will be settled on substantially the same terms and
conditions as were applicable immediately prior to consummation of the
Merger in that number of shares of Durco Common Stock (rounded down to the
nearest share) equal to the product of (x) the number of shares of BW/IP
Common Stock which would have been delivered pursuant to such stock-based
award and (y) 0.6968. The exercise price for each outstanding option shall
be equal to the aggregate exercise price for the number of Shares of BW/IP
Common Stock subject to such option before the Merger divided by the number
of shares of Durco Common Stock subject to such option after the Merger.
The designation of the Post-Effective Amendment as Registration
No. 333-29541 denotes that the Post-Effective Amendment relates only to the
shares of Durco Common Stock issuable (i) on the exercise of stock options
under the Plans, (ii) on the lapse of restrictions on restricted stock
awards granted under the Plans, (iii) in connection with the satisfaction
of certain deferred compensation obligations or (iv) in connection with the
investment of funds under the 401(k) Plan and that this is the first
Post-Effective Amendment to the Form S-4 filed with respect to such shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Durco hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission (the "SEC") pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997;
(c) The Registrant's Current Report on Form 8-K filed May 15,
1997; and
(d) The Registrant's Registration Statement on Form 8-A/A, as
amended, filed with the SEC on July 18, 1997 pursuant to
Section 12 of the Exchange Act, in which there is described
the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
(e) The Registrant's Registration Statement on Form 8-A/A, as
amended, filed with the SEC on July 18, 1997 pursuant to
Section 12 of the Exchange Act, in which there is described
the terms, rights and provisions applicable to the
Registrant's Series A Junior Participating Preferred Stock.
All documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 or 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 hereby have been sold
or incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of 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 subsequently filed document which also 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
None.
Item 6. Indemnification of Directors and Officers
The Business Corporation Law of the State of New York ("BCL")
provides that if a derivative action is brought against a director or
officer, the Registrant may indemnify him or her against amounts paid in
settlement and reasonable expenses, including attorneys' fees incurred by
him or her in connection with the defense or settlement of such action, if
such director or officer acted on good faith for a purpose which he or she
reasonably believed to be in the best interests of the Registrant, except
that no indemnification shall be made without court approval in respect of
a threatened action, or a pending action settled or otherwise disposed of,
or in respect of any matter as to which such director or officer has been
found liable to the Registrant. In a nonderivative action or threatened
action, the BCL provides that the Registrant may indemnify a director or
officer against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees incurred by him or her in defending
such action if such director or officer acted in good faith for a purpose
which he or she reasonably believed to be in the best interests of the
Registrant.
Under the BCL, a director or officer who is successful, either in
a derivative or nonderivative action, is entitled to indemnification as
outlined above. Under any other circumstances, such director or officer may
be indemnified only if certain conditions specified in the BCL are met. The
indemnification provisions of the BCL are not exclusive of any other rights
to which a director or officer seeking indemnification may be entitled
pursuant to the provisions of the certificate of incorporation or the
by-laws of a corporation or, when authorized by such certificate of
incorporation or by-laws, pursuant to a shareholders' resolution, a
directors' resolution or an agreement providing for such indemnification.
The above is a general summary of certain indemnity provisions of
the BCL and is subject, in all cases, to the specific and detailed
provisions of Sections 721-725 of the BCL.
Article IX, Section 1 of the Registrant's By-laws provide that
the Registrant shall indemnify any present or future director or officer
from and against any and all liabilities and expenses to the maximum extent
permitted by the BCL as the same presently exists or to the greater extent
permitted by any amendment hereafter adopted.
Section 726 of the BCL also contains provisions authorizing the
Registrant to obtain insurance on behalf of any such director and officer
against liabilities, whether or not the Registrant would have the power to
indemnify against such liabilities. As permitted by law, the Registrant
maintains and pays premiums for directors' and officers' liability
insurance policies.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Index to Exhibits following the signature pages to this
Post-Effective Amendment No. 1.
Item 9. Undertakings
(a) Undertakings Relating to Rule 415 Offerings
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;
(iii) To included 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) of this section
do not apply if the Registration Statement is on Form S-8 or Form S-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 section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
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.
(4) 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 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.
(5) 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
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 the requirements for filing this 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 Dayton, State of Ohio, on the
22nd day of July, 1997.
Durco International Inc.
(Registrant)
By: /s/ Ronald F. Shuff
-----------------------
Ronald F. Shuff
Vice President, Secretary and General
Counsel
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons on
July 22, 1997 in the capacities and on the date indicated.
*
- --------------------------- Chairman of the Board
William M. Jordan President and Chief
Executive Officer
*
- --------------------------- Director
Hugh K. Coble
- --------------------------- Director
Ernest Green
*
- --------------------------- Director
John S. Haddick
*
- --------------------------- Director
Diane C. Harris
*
- --------------------------- Director
Richard L. Molen
*
- --------------------------- Director
James F. Schorr
*
- --------------------------- Director
Kevin E. Sheehan
*
- --------------------------- Director
R. Elton White
*
- --------------------------- Director
James S. Ware
*By: /s/ Ronald F. Shuff
---------------------
Ronald F. Shuff
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Restated Certificate of Incorporation of the Registrant, as
amended (filed as Exhibit 3.1 to the Form S-4).*
4.2 By-Laws of the Registrant, as amended (filed as Exhibit 3.2
to the Form S-4).*
4.3 Rights Agreement dated as of August 1, 1986 between the
Registrant and BankOne, N.A., as Rights Agent (filed as
Exhibit 1 to the Registrant's Form 8-A dated August 13,
1986).*
4.4 Amendment dated as of August 1, 1996 to the Rights Agreement
dated as of August 13, 1986 (filed as Exhibit 4.5 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996).*
4.5 BW/IP, Inc. 1996 Long-Term Incentive Plan (filed as Appendix
A to BW/IP, Inc.'s Proxy Statement for the 1996 Annual
Meeting of Stockholders dated April 9, 1996 (the "1996 BWIP
Proxy Statement").*
4.6 First Amendment to the BW/IP, Inc. 1996 Long-Term Incentive
Plan (filed as Exhibit 99.d of BW/IP, Inc.'s Registration
Statement on Form S-8 (Registration No. 333-21637) as filed
on February 12, 1997 (the "1997 BWIP Form S-8").*
4.7 BW/IP, Inc. 1996 Directors Stock and Deferred Compensation
Plan (filed as Appendix B to the 1996 BWIP Proxy
Statement).*
4.8 First Amendment to the BW/IP, Inc. 1996 Directors Stock and
Deferred Compensation Plan (filed as Exhibit 99.f of the
1997 BWIP Form S-8).*
4.9 BW/IP International, Inc. 1992 Long-Term Incentive Plan
(filed as Appendix A to BW/IP, Inc.'s Proxy Statement for
the 1992 Annual Meeting of Stockholders dated April 17,
1992).*
4.10 BWIP Holding, Inc. Non-Employee Director's Stock Option Plan
(filed as Appendix A to BW/IP, Inc.'s Proxy Statement for
the 1993 Annual Meeting of Stockholders dated April 16,
1993).*
4.11 BW/IP International Inc. Capital Accumulation Plan, as
amended.
5.1 Opinion of Cravath, Swaine & Moore.
23.1 Consent of Cravath, Swaine & Moore (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP
* Incorporated by reference to a document previously filed with the SEC.