sv8
As
filed with the U.S. Securities and Exchange Commission on
August 10, 2006
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CABOT CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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04-2271897 |
(State or other jurisdiction
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(I.R.S. Employer |
of incorporation or organization)
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Identification No.) |
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Two Seaport Lane |
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Suite 1300 |
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Boston, MA
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02210 |
(Address of principal executive offices)
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(Zip Code) |
1999 Equity Incentive Plan
1996 Equity Incentive Plan
(Full title of the plan)
Brian A. Berube, Esq.
Vice President and General Counsel
Two Seaport Lane
Suite 1300
Boston, MA 02210
(Name and address of agent for service)
617-345-0100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Amount Of |
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Amount To Be |
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Offering Price Per |
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Aggregate Offering |
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Registration |
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Title Of Securities To Be Registered |
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Registered (1) |
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Share |
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Price |
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Fee |
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Common Stock,
Par Value $1.00 per
share |
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604,700 shares (2) |
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$26.40-$34.87 (3) |
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$17,551,586 (3) |
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$1,878.02 (3) |
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(1) |
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Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also
covers such additional shares of common stock as may become issuable under the plans to
prevent dilution from stock splits, stock dividends and similar transactions. |
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(2) |
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The shares of Cabot Corporation common stock being registered hereby include (a) 84,400
shares issuable upon the exercise of outstanding
stock options issued under the 1999 Equity Incentive Plan; and
(b) 520,300 shares issuable upon the exercise of outstanding
stock options issued under the 1996 Equity Incentive Plan. |
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(3) |
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The option exercise prices range from a low of $26.40 to a
high of $34.87. Estimated solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) of the Securities Act of 1933, as amended, and based upon
the prices at which the outstanding stock options may be exercised. |
TABLE OF CONTENTS
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Cabot Corporation, Inc. (Registrant) is filing this registration statement on Form S-8 to
register 84,400 additional shares of Registrants common stock issuable upon the exercise of outstanding
stock options issued under
Registrants 1999 Equity Incentive Plan (the 1999
Plan) and 520,300 additional shares of
Registrants common stock issuable upon the exercise of outstanding
stock options issued under Registrants 1996 Equity Incentive Plan
(the 1996 Plan).
On July 6, 1999 and July 22, 2002, Registrant filed registration statements on Form S-8 (file
nos. 333-82353 and 333-96879, respectively) with the United States Securities and Exchange
Commission (SEC) to register shares of Registrants common stock for issuance under the 1999 Plan
(the 1999 Plan Registration Statement). On May 14, 1996, Registrant filed a registration
statement on Form S-8 (file no. 333-03683) with the SEC to register shares of Registrants common
stock for issuance under the 1996 Plan (the 1996 Plan Registration Statement). In accordance
with General Instruction E of Form S-8, the contents of the 1999 Plan Registration Statement and
the 1996 Plan Registration Statement are hereby incorporated into this registration statement.
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 (the Commission)
pursuant to the Securities Exchange Act of 1934, as amended (the Exchange Act) by Cabot
Corporation (the Registrant) (Commission File No. 1-5667) are incorporated in this Registration
Statement by reference and shall be deemed to be a part hereof:
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(a) |
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The Registrants Annual Report on Form 10-K for the fiscal year ended September
30, 2005, as filed with the Commission on December 14, 2005; |
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(b) |
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The Registrants Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 2005, as filed with the Commission on February 9, 2006; |
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(c) |
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The Registrants Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2006, as filed with the Commission on May 10, 2006; |
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(d) |
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The Registrants Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2006, as filed with the Commission on August 9,
2006; |
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(e) |
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The Registrants Current Reports on Form 8-K as filed with the Commission on
August 10, 2006, August 3, 2006, July 20, 2006, July 14, 2006, June 1, 2006, May 17, 2006, May 4, 2006,
February 9, 2006, February 2, 2006, January 19, 2006, January 10, 2006, December 27,
2005, December 13, 2005, November 23, 2005, November 3, 2005, and October 17, 2005; |
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(e) |
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The description of the Registrants Common Stock, $1.00 par value per share,
contained in the Registrants Registration Statement on Form 10, filed with the
Commission pursuant to Section 12 of the Exchange Act. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration
Statement that 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 from the
date of filing of such documents. Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed document that also is
or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
Brian A. Berube, the Registrants Vice President and General Counsel, has opined as to the
legality of the issuance of the common stock being registered under this Registration Statement.
At the time of rendering his opinion, Mr. Berube had a substantial interest in the Registrant, as
defined by the rules of the Commission, in that the fair market value of Cabot common stock owned
by him exceeds $50,000. It is anticipated that additional shares will be issued to Mr. Berube
pursuant to the Cabot Corporation 2006 Long-Term Incentive Plan and under employee benefit plans of
the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation
may indemnify any person 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 or investigative (other
than an action by or in the right of the corporation) by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and 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 any criminal action or proceeding, had no reasonable cause to believe such persons
conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any
such person serving in any such capacity who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor, against expenses actually and reasonably incurred 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 interest of the
corporation and except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or such other court in which such action or
suit was brought shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law, as amended, permits a corporation
to include in its certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided, however,
that such provision shall not eliminate or limit the liability of a director (i) for any
breach of the directors 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 Delaware General Corporation Law (relating to unlawful payment of
dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the
director derived an improper personal benefit.
Article Eight (j) of the Registrants Certificate of Incorporation and Section 14 of the
Registrants by-laws provide that the Registrant shall indemnify any person who was a party, is a
party or is threatened to be made a party to any threatened, pending or completed action, suit, or
proceeding by reason of the fact that such person is or was a director, officer, employee or agent
of the Registrant or is or was serving at the request of the Registrant as a director, officer,
employee or agent of another company or enterprise, including service as a fiduciary of an employee
benefit plan, against expenses (including attorneys fees), judgments, fines, penalties and amounts
paid in settlement incurred in connection with such action, suit or proceeding to the extent
permitted from time to time under the Delaware General Corporation Law. Such indemnification shall
be made as authorized in a specific case upon a determination by the Board of Directors or the
stockholders of the Registrant. The rights of indemnification are not exclusive of any other rights
to which those seeking indemnification may be entitled and shall continue as to a person who ceases
to be a director, officer, employee or agent. In addition, under Article Eight (i) of the
Registrants Certificate of Incorporation no director or officer of the Registrant shall be liable
to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty, except
to the extent that Delaware General Corporation Law prohibits the elimination or limitation of
liability of directors or officers for breach of fiduciary duty.
All of the Registrants directors and officers are covered by insurance policies maintained by
the Registrant against specified liabilities for actions taken in their capacities as such,
including liabilities under the Securities Act.
Item 8. Exhibits.
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Exhibit |
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Number |
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Document Description |
4.1
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Restated Certificate of Incorporation of Cabot Corporation (incorporated by
reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q of Cabot Corporation,
File No. 1-5667, filed with the Commission on February 9, 2006). |
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5.1*
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Opinion of Brian A. Berube, Vice President and General Counsel. |
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23.1*
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Consent of PricewaterhouseCoopers LLP. |
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23.2*
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Consent of Brian A. Berube, Vice President and General Counsel (included in Exhibit 5.1). |
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24*
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Power of Attorney (included on the signature page of this registration statement). |
Item 9. Undertakings.
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(a) |
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The undersigned Registrant hereby undertakes: |
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(1) |
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To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: |
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(i) |
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To include any prospectus required by Section
10(a)(3) of the Securities Act; |
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(ii) |
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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; and |
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(iii) |
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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; |
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement. |
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(2) |
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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. |
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(3) |
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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. |
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(b) |
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The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrants annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plans 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. |
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(c) |
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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 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 |
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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, 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 Boston, The Commonwealth of Massachusetts, on this
9th day of August, 2006.
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CABOT CORPORATION
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By: |
/s/ Kennett F. Burnes
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Name: |
Kennett F. Burnes |
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Title: |
President and Chief Executive Officer |
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SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Brian A. Berube and Jane A.
Bell and each of them singly, his or her true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him or her and in his or her name, place and stead as a
director or officer or both, as the case may be, of Cabot Corporation, to sign any and all
amendments (including post-effective amendments) to this Registration Statement on Form S-8 to be
filed by Cabot Corporation, and all documents or instruments necessary or appropriate to enable
Cabot Corporation to comply with the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and every act
whatsoever that is necessary, appropriate or advisable in connection with any or all of the
above-described matters and to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes,
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 by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Kennett F. Burnes
Kennett F. Burnes |
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Director, Chairman of the Board, Chief
Executive Officer and President
(Principal Executive Officer)
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August 9, 2006 |
/s/ Jonathan P. Mason
Jonathan P. Mason |
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Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
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August 9, 2006 |
/s/ James P. Kelly
James P. Kelly |
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Controller
(Controller/Principal Accounting Officer)
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August 9, 2006 |
/s/ Dirk L. Blevi
DIRK L. BLEVI |
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Director
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August 9, 2006 |
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Signature |
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Title |
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Date |
/s/ John S. Clarkeson
John S. Clarkeson |
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Director
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August 9, 2006 |
/s/ Juan Enriquez-Cabot
Juan Enriquez-Cabot |
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Director
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August 9, 2006 |
/s/ Arthur L. Goldstein
Arthur L. Goldstein |
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Director
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August 9, 2006 |
/s/ Gautam S. Kaji
Gautam S. Kaji |
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Director
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August 9, 2006 |
/s/ Roderick C.G. MacLeod
Roderick C.G. Macleod |
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Director
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August 9, 2006 |
/s/ John H. McArthur
John H. McArthur |
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Director
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August 9, 2006 |
/s/ Henry F. McCance
Henry F. McCance |
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Director
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August 9, 2006 |
/s/ John F. OBrien
John F. OBrien |
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Director
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August 9, 2006 |
/s/ Ronaldo H. Schmitz
Ronaldo H. Schmitz |
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Director
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August 9, 2006 |
/s/ Lydia W. Thomas
Lydia W. Thomas |
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Director
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August 9, 2006 |
/s/ Mark S. Wrighton
Mark S. Wrighton |
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Director
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August 9, 2006 |
/s/ Shengman Zhang
Shengman zhang |
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Director
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August 9, 2006 |
EXHIBIT INDEX
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Exhibit |
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Number |
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Document Description |
4.1
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Restated Certificate of Incorporation of Cabot Corporation (incorporated by
reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q of Cabot Corporation,
File No. 1-5667, filed with the Commission on February 9, 2006). |
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5.1*
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Opinion of Brian A. Berube, Vice President and General Counsel. |
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23.1*
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Consent of PricewaterhouseCoopers LLP. |
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23.2*
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Consent of Brian A. Berube, Vice President and General Counsel (included in Exhibit 5.1). |
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24*
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Power of Attorney (included on the signature page of this registration statement). |
exv5w1
Exhibit 5.1
August 9, 2006
Cabot Corporation
Two Seaport Lane
Suite 1300
Boston, MA 02210
Ladies and Gentlemen:
I am Vice President and General Counsel of Cabot Corporation, a Delaware corporation (the
Company), and have represented the Company in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933 (the Act) of a Registration
Statement on Form S-8 (the Registration Statement)
relating to 604,700 shares (the Shares) of
the Companys common stock, par value $1.00 per share, issuable pursuant to the 1999 Equity
Incentive Plan and 1996 Equity Incentive Plan of Cabot Corporation (collectively, the Plans).
I have examined (i) the Companys Restated Certificate of Incorporation and the By-Laws, each
as amended to date, the Plans and votes adopted by the Board of Directors of the Company relating
to, among other things, the Plans and (ii) originals, or copies certified or otherwise identified
to my satisfaction, of corporate records of the Company, including minute books of the Company,
certificates of public officials and of representatives of the Company, statutes and other
instruments or documents, as a basis for the opinion hereinafter expressed. In making my
examination, I have assumed that all signatures on all documents examined by me are genuine, that
all documents submitted to me as originals are accurate and complete, that all documents submitted
to me as copies are true and correct copies of the originals thereof and that all information
submitted to me was accurate and complete.
Based on the foregoing, I am of the opinion that the Shares have been duly and validly
authorized for issuance by all necessary corporate action on the part of the Company and, upon
delivery thereof and payment therefor in accordance with the relevant Plan and the Registration
Statement, will be validly issued, fully paid, and non-assessable.
This opinion is limited to the original issuance of Shares by the Company.
I am a member of the Massachusetts Bar and the opinion set forth above is limited in all
respects to the laws of The Commonwealth of Massachusetts and the General Corporation Law of the
State of Delaware, including the applicable provisions of the Delaware Constitution and the
reported cases interpreting those laws, as in effect on the date hereof.
I hereby consent to the filing of this opinion with the Commission as an exhibit to the
Registration Statement. In giving such consent, I do not thereby admit that I am in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
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Very truly yours,
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/s/ Brian A. Berube
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Brian A. Berube |
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Vice President and General Counsel |
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exv23w1
Exhibit 23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form
S-8 of our report dated December 14, 2005 relating to the
financial statements, managements assessment of the
effectiveness of internal control over financial reporting and the
effectiveness of internal control over financial reporting, of Cabot
Corporation, which appears in Cabot Corporations Annual Report
on Form 10-K for the year ended September 30, 2005.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
August 9, 2006