As filed with the Securities and Exchange Commission on August 4, 2006
File No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BOWATER INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 62-0721803
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
55 East Camperdown Way, P.O. Box 1028, Greenville, South Carolina 29602
(864) 271-7733
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
Bowater Incorporated 2006 Stock Option and Restricted Stock Plan
(Full title of the plan)
Ronald T. Lindsay
Sr. Vice President-General Counsel and Secretary
Bowater Incorporated
55 East Camperdown Way, P.O. Box 1028
Greenville, South Carolina 29602
(864) 271-7733
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities to be Registered Amount to be Offering Price Aggregate Amount of
Registered (1) Per Share (2) Offering Price (2) Registration Fee
------------------------------------- ------------------- ------------------- --------------------- ------------------
------------------------------------- ------------------- ------------------- --------------------- ------------------
Common Stock, $1.00 par value 3,000,000 shares $20.195 $60,585,000 $6,482.60
===================================== =================== =================== ===================== ==================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover additional
shares of the Registrant's Common Stock which become issuable by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase in
the number of the outstanding shares of Common Stock of the Registrant.
(2) Estimated pursuant to Rule 457(c) under the Securities Act solely for
purposes of determining the registration fee on the basis of the average of the
high ($20.42) and low prices ($19.97) for the Common Stock as reported on the
New York Stock Exchange on JAugust 1, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the "Note" to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Bowater Incorporated (the "Company" or the
"Registrant"), with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act and the Securities Exchange Act of 1934
("Exchange Act"), are incorporated by reference in this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2005, filed with the Commission on March 13, 2006;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2006, filed with the Commission on May 10, 2006;
(c) The Registrant's Current Reports on Form 8-K filed with the Commission
on January 26, 2006; January 30, 2006; April 10, 2006; April 27, 2006; May 10,
2006; May 15, 2006; May 31, 2006; and amendments thereto on Form 8-K/A, filed on
March 2, 2006; and
(d) The description of the Registrant's Common Stock, $1.00 par value per
share contained in its Registration Statement on Form S-3 (No. 33-51569),
including Amendment No. 1 to the Registrant's Registration Statement on Form S-3
(No. 333-57839) and any other amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed with the Commission 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 which indicates that all
securities offered herein 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
document (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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. Interest of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be reviewed
for the Company by Ronald T. Lindsay, Senior Vice President - General Counsel
and Secretary of the Company. As of July 13, 2006, Mr. Lindsay owned options to
purchase 30,020 shares of the Company's Common Stock and 6,632 stock units that
have certain restrictions on their sale and transfer.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides for
indemnification of directors and officers against any legal liability (other
than liability arising from derivative suits) if the officer or director acted
in
good faith and in a manner that he reasonably believed to be in or not opposed
to the best interests of the corporation. In criminal actions, the officer or
director must also have had no reasonable cause to believe that his conduct was
unlawful. A corporation may indemnify an officer or director in a derivative
suit if the officer or director acted in good faith and in a manner that he
reasonably believed to be in or not opposed to the best interest of the
corporation unless the officer or director is found liable to the corporation.
However, if the Court of Chancery or the court in which such action or suit was
brought determines that the officer or director is fairly and reasonably
entitled to indemnity, then the Court of Chancery or such other court may permit
indemnity for such officer or director to the extent it deems proper.
The Registrant's Bylaws provide generally that the Registrant shall
indemnify its present and past directors and officers to the fullest extent
permitted by the laws of Delaware as they may exist from time to time. Directors
and officers of the Registrant and its subsidiaries are indemnified generally
against expenses actually and reasonably incurred in connection with
proceedings, whether civil or criminal. The Registrant's Bylaws also provide
that indemnification thereunder is not exclusive, and the Registrant may agree
to indemnify any person as provided therein. The Registrant is a party to
indemnification agreements with its directors and officers. The agreements
provide that the Registrant will indemnify such directors and officers to the
fullest extent permitted by applicable law, and require the Registrant to
maintain directors' and officers' liability insurance at the level in effect
when the relevant indemnification agreement was executed and to advance expenses
upon the request of an officer or director.
The Registrant's Certificate of Incorporation provides that directors of
the Registrant shall not be held personally liable to the Registrant or its
stockholders for monetary damages arising from certain breaches of their
fiduciary duties. The provision does not insulate directors from personal
liability for (i) breaches of their duty of loyalty to the Registrant or its
stockholders, (ii) acts or omissions not taken in good faith or that involve
intentional misconduct or knowing violation of law, (iii) transactions in which
the director derives any improper personal benefit or (iv) unlawfully voting to
pay dividends or to repurchase to redeem stock.
The Registrant maintains insurance policies providing for indemnification
of directors and officers and for reimbursement to the Registrant for monies
which it may pay as indemnity to any director or officer, subject to the
conditions and exclusions of the policies and specified deductible provisions.
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 in the Index to Exhibits which 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 this Registration Statement; and
(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 in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) 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.
(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 the purpose of determining liability of the Registrant under
the Securities Act to any purchaser in the initial distribution of the
securities:
The undersigned Registrant undertakes that in a primary offering of
securities of the undersigned Registrant pursuant to this Registration
Statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
Registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used or
referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating
to the offering containing material information about the
undersigned Registrant or its securities provided by or on behalf
of the undersigned Registrant; and
(iv) any other communication that is an offer in the offering
made by the undersigned Registrant to the purchaser.
(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 that is incorporated by reference in this 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 provisions of the Registrant's articles of
incorporation, by-laws 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 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, 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 Greenville, State of South Carolina, on August 4,
2006.
BOWATER INCORPORATED
(Registrant)
By: /s/ David J. Paterson
-------------------------------------
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, the Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/ David J. Paterson President and Chief Executive Officer August 4, 2006
------------------------------------ (principal executive officer)
David J. Paterson
/s/ William G. Harvey Senior Vice President and Chief Financial Officer August 4, 2006
------------------------------------ (principal financial officer)
William G. Harvey
/s/ Joseph B. Johnson Vice President and Controller August 4, 2006
------------------------------------ (principal accounting officer)
Joseph B. Johnson
* Director August 4, 2006
-------------------------
Richard B. Evans
Director August __, 2006
-------------------------
Gordon D. Giffin
* Director August 4, 2006
-------------------------
Ruth R. Harkin
Director August __, 2006
-------------------------
L. Jacques Menard
* Director August 4, 2006
-------------------------
Arnold M. Nemirow
* Director August 4, 2006
-------------------------
Douglas A. Pertz
* Director August 4, 2006
-------------------------
John A. Rolls
Director August 4, 2006
-------------------------
*
Arthur R. Sawchuk
Director August 4, 2006
-------------------------
*
Bruce W. Van Saun
* Director August 4, 2006
-------------------------
Togo D. West Jr.
*Ronald T. Lindsay, by signing his name hereto, does sign this document on
behalf of the persons indicated above pursuant to powers of attorney duly
executed by such persons that are filed herewith as Exhibit 24.
By: /s/ William G. Harvey
--------------------------------
William G. Harvey,
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit
Number Description of Document
4.1 Restated Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 4.1 to the Registrant's Registration
Statement No. 333-018168).
4.2 Bylaws of the Registrant amended as of July 27, 2005 (incorporated by
reference to the 8-K dated July 27, 2005).
4.3 Bowater Incorporated 2006 Stock Option and Restricted Stock Plan
(incorporated by reference from Appendix A to Registrant's Proxy Statement
No. 001-08712).
5 Opinion of Counsel.
23.1 Consent of Counsel (included in opinion filed in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Powers of Attorney.