As filed with the Securities and Exchange Commission on November 15, 2002
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------
THE SHERWIN-WILLIAMS COMPANY
(Exact name of registrant as specified in its charter)
---------------
OHIO 34-0526850
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
101 PROSPECT AVENUE, N.W.
CLEVELAND, OHIO 44115
(Address, including zip code, of principal executive offices)
THE SHERWIN-WILLIAMS COMPANY 2003 STOCK PLAN
(Full title of the plan)
L.E. STELLATO
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
THE SHERWIN-WILLIAMS COMPANY
101 PROSPECT AVENUE, N.W.
CLEVELAND, OHIO 44115
(216) 566-2000
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
======================== ======================= ======================== ========================== =====================
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price aggregate offering Amount of
be Registered Registered (1) per share (2) price (2) registration fee
------------------------ ----------------------- ------------------------ -------------------------- ---------------------
Common Stock, $1.00
par value per share 9,195,735 shares $27.99 $257,388,623 $23,680
(3)
======================== ======================= ======================== ========================== =====================
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number of
additional shares as may be issuable as a result of the anti-dilution provisions
of the employee benefit plan described herein.
(2) This amount is estimated in accordance with Rule 457 solely for the purpose
of calculating the registration fee based upon the average of the high and low
prices of our common stock as reported on the New York Stock Exchange on
November 11, 2002.
(3) Shares of the Registrant's common stock are accompanied by rights to
purchase cumulative redeemable serial preferred stock issued pursuant to a
rights agreement, dated as of April 23, 1997. Until the occurrence of certain
prescribed events, none of which has occurred, these rights are not exercisable,
are evidenced by the certificates representing our common stock, and will be
transferred only with our common stock.
=====================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by The Sherwin-Williams Company
("Sherwin-Williams" or the "Company") are incorporated herein by reference,
except to the extent that any statement or information therein is modified,
superseded or replaced by a statement or information contained in any other
subsequently filed document incorporated herein by reference:
(1) Sherwin-Williams' Annual Report on Form 10-K for the year
ended December 31, 2001;
(2) Sherwin-Williams' Quarterly Report on Form 10-Q for the
quarter ended March 31, 2002;
(3) Sherwin-Williams' Quarterly Report on Form 10-Q for the
quarter ended June 30, 2002;
(4) Sherwin-Williams' Quarterly Report on Form 10-Q for the
quarter ended September 30, 2002;
(5) Sherwin-Williams' Current Report on Form 8-K, dated March 21,
2002;
(6) Sherwin-Williams' Current Report on Form 8-K, dated April 10,
2002;
(7) Sherwin-Williams' Current Report on Form 8-K, dated July 11,
2002;
(8) Sherwin-Williams' Current Report on Form 8-K, dated August 12,
2002;
(9) Sherwin-Williams' Current Report on Form 8-K, dated September
27, 2002;
(10) The description of Sherwin-Williams' common stock included in
its registration statements filed under Section 12 of the
Securities Exchange Act, including any amendments or reports
filed for the purpose of updating such description; and
(11) The description of Sherwin-Williams' cumulative redeemable
serial preferred stock purchase rights associated with the
common stock included in Sherwin-Williams' Registration
Statement on Form 8-A filed with the SEC on April 24, 1997
under Section 12 of the Securities Exchange Act.
All documents subsequently filed by Sherwin-Williams pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities 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, shall
be deemed to be incorporated by reference in this Registration Statement
II-1
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
in this Registration Statement 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 also is 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.
The validity of the shares of Sherwin-Williams' common stock being
registered pursuant to this Registration Statement has been passed upon by L.E.
Stellato, Vice President, General Counsel and Secretary of Sherwin-Williams. At
November 1, 2002, Mr. Stellato beneficially owned 33,644 shares of common stock
and held options to purchase an additional 186,000 shares of common stock of
which 96,000 were exercisable within 60 days of such date. Mr. Stellato is
eligible to participate in the 2003 Stock Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IV of Sherwin-Williams' Regulations, as amended April 27, 1988
(the "Regulations"), filed as Exhibit 4(b) to Post-Effective Amendment No. 1 to
Form S-8 File Number 2-91401, filed May 2, 1988, is incorporated herein by
reference.
Reference is made to Section 1701.13(E) of the Ohio Revised Code
relating to the indemnification of directors and officers of an Ohio corporation
and to Sections 1 and 2 of Article IV of the Regulations.
The Ohio Revised Code permits and Section 1 of Article IV of the
Regulations provides that Sherwin-Williams shall indemnify its directors,
officers and employees against amounts that may be incurred in connection with
certain actions, suits or proceedings under the circumstances as set out in
Sections 1(a) and 1(b) of Article IV of the Regulations. However, the Ohio
Revised Code and Section 1 of Article IV of the Regulations limit
indemnification in respect of certain claims, issues or matters as to which such
party is adjudged to be liable for negligence or misconduct in performance of
his or her duty to Sherwin-Williams and also in actions in which the only
liability asserted against a director is for certain statutory violations. The
Ohio Revised Code and Section 1 of Article IV of the Regulations also provide
that general indemnification provisions as found in Sections 1(a) and 1(b) of
Article IV of the Regulations do not limit the remaining provisions of Article
IV of the Regulations.
In addition, with certain limited exceptions, expenses incurred by a
director in defending an action must be paid by Sherwin-Williams as they are
incurred in advance of the final
II-2
disposition if the director agrees (i) to repay such advances if it is proved by
clear and convincing evidence that the director's action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
Sherwin-Williams or undertaken with reckless disregard for Sherwin-Williams'
best interests and (ii) to reasonably cooperate with Sherwin-Williams concerning
the action. Also, Sherwin-Williams may pay certain expenses incurred by an
officer or employee in defending an action as they are incurred in advance of
the final disposition of an action if the officer or employee receiving the
advance undertakes to repay the advance if it is ultimately determined that the
officer or employee receiving the advance is not entitled to indemnification.
Sherwin-Williams may from time to time maintain insurance on behalf of
any person who is or was a director, officer or employee against any loss
arising from any claim asserted against such director, officer or employee in
any such capacity, subject to certain exclusions. Sherwin-Williams has entered
into indemnification agreements with its directors and certain of its officers
providing protection as permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed in the Exhibit
Index on page II-6, which information 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 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 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;
II-3
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of such
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.
(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 provisions described above, or otherwise, the
undersigned 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 such 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
The Registrant. 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
II-4
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 Cleveland,
State of Ohio, on November 15, 2002.
The Sherwin-Williams Company
By: /s/ L.E. Stellato
-------------------------------------
L.E. Stellato,
Vice President, General Counsel and
Secretary
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 date indicated.
* C. M. CONNOR Chairman and Chief Executive Officer,
----------------------------------------------------------- Director (Principal Executive Officer)
C. M. Connor
* J. M. SCAMINACE President and Chief Operating Officer,
----------------------------------------------------------- Director
J. M. Scaminace
* S. P. HENNESSY Senior Vice President -- Finance
----------------------------------------------------------- and Chief Financial Officer
S. P. Hennessy (Principal Financial Officer)
* J. L. AULT Vice President -- Corporate Controller
----------------------------------------------------------- (Principal Accounting Officer)
J. L. Ault
* J. C. BOLAND Director
-----------------------------------------------------------
J. C. Boland
* J. G. BREEN Director
-----------------------------------------------------------
J. G. Breen
* D. E. COLLINS Director
-----------------------------------------------------------
D. E. Collins
II-5
* D. E. EVANS Director
-----------------------------------------------------------
D. E. Evans
* R. W. MAHONEY Director
-----------------------------------------------------------
R. W. Mahoney
* G. E. MCCULLOUGH Director
-----------------------------------------------------------
G. E. McCullough
* A. M. MIXON, III Director
-----------------------------------------------------------
A. M. Mixon, III
* C. E. MOLL Director
-----------------------------------------------------------
C. E. Moll
* R. K. SMUCKER Director
-----------------------------------------------------------
R. K. Smucker
* The undersigned, by signing his name hereto, does hereby sign this
registration statement on behalf of each of the above-named officers and
directors of Sherwin-Williams pursuant to powers of attorney executed by each
such officer and director and filed herewith.
By: /s/ L.E. Stellato November 15, 2002
------------------------------------------------
L. E. Stellato, Attorney-in-fact
EXHIBIT INDEX
Exhibit Description
4.1 Amended and Restated Articles of Incorporation of
Sherwin-Williams, as amended through May 1, 2001,
filed as Exhibit 3(a) to Sherwin-Williams' Annual
Report on Form 10-K for the fiscal year ended
December 31, 2001, and incorporated herein by
reference.
4.2 Regulations of Sherwin-Williams, as amended, dated
April 27, 1988, filed as Exhibit 4(b) to
Post-Effective Amendment No. 1, dated April 29, 1988,
II-6
to Form S-8 Registration Statement Number 2-91401, and incorporated
herein by reference.
4.3 Rights Agreement between Sherwin-Williams and The Bank of New York, as
successor Rights Agent to KeyBank National Association, dated April 23,
1997, filed as Exhibit 1 to Form 8-A, dated April 24, 1997, and
incorporated herein by reference.
5.1 Opinion of L.E. Stellato (filed herewith).
10.1 The Sherwin-Williams Company 2003 Stock Plan, filed as Exhibit 10(a) to
Sherwin-Williams' Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2002, and incorporated herein by reference.
23.1 Consent of L.E. Stellato, included in Exhibit 5.1 (filed herewith).
23.2 Consent of Ernst & Young LLP, Independent Auditors (filed herewith).
24.1 Powers of Attorney (filed herewith).
24.2 Certified Resolution Authorizing Signature by Power of Attorney (filed
herewith).
II-7