As filed with the Securities and Exchange Commission on November 20, 2006
Registration 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 of Incorporation) (IRS Employer Identification No.)
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
Supplemental Retirement Savings Plan
Effective as of January 1, 2005
(Full title of the plan)
Ronald T. Lindsay
Executive 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
============================ ==================== ======================= ======================= ====================
Title Of Each Class Of Amount To Be Proposed Maximum Proposed Maximum Amount of
Securities To Be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Unit Price(2)
---------------------------- -------------------- ----------------------- ----------------------- --------------------
---------------------------- -------------------- ----------------------- ----------------------- --------------------
Participation Interests in
Deferred Compensation $10,000,000 N/A $10,000,000 $1,070
Plan(1)
============================ ==================== ======================= ======================= ====================
1. The participation interests represent the election to defer compensation
under the Bowater Incorporated Supplemental Retirement Savings Plan (the "Plan")
for payment by Bowater Incorporated (and each other entity affiliated with the
Registrant that is a participating employer under the Plan (the "Affiliated
Entity")) in the future, which obligations to pay are unsecured general
obligations of Bowater Incorporated (or its Affiliated Entity) and shall be
fulfilled in accordance with the terms of the Plan.
2. Estimated solely for purposes of calculating the registration fee, and
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act, as amended, and the "Note" to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by Bowater Incorporated, a Delaware corporation (the
"Registrant"), pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference:
(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 Reports on Form 10-Q for the quarter ended
March 31, 2006, filed with the Commission on May 10, 2006; for the
quarter ended June 30, 2006, filed with the Commission on August 4,
2006 and for the quarter ended September 30, 2006, filed with the
Commission on November 14, 2006; and
(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; July 27, 2006; October 26,
2006; and November 15, 2006; and amendments thereto on Form 8-K/A,
filed on March 2, 2006.
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
that are filed subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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 respective date of filing of each 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.
The securities to be offered under this Registration Statement are
participation interests that constitute investment contracts. Under the Bowater
Incorporated Supplemental Retirement Savings Plan (the "Plan"), beginning
January 1, 2007, certain eligible employees who are among a select group of
management and highly compensated employees of the Registrant, and each
Affiliated Entity, may elect to defer up to 50% of their base salary for payment
in the future. Payment, in accordance with the Plan, represents an unsecured
general obligation of the Registrant (or the Affiliated Entity, if the
Affiliated Entity is the participant's employer) to pay to the participants the
value of their deferred compensation, adjusted to reflect the performance of the
participants' selected measurement investment funds (the "Obligations"). There
is no trading market for the Obligations.
The Obligations will rank without preference with other unsecured and
unsubordinated indebtedness of the Registrant (or the Affiliated Entity, as
applicable) from time to time outstanding and are, therefore, subject to the
risks of the Registrant's (or the Affiliated Entity's, as applicable)
insolvency. Participants in the Plan will have no rights to any assets held in
any trust or fund of the Registrant (or the Affiliated Entity, as applicable)
except as general creditors in the event of the Registrant's (or the Affiliated
Entity's, as applicable) insolvency or bankruptcy.
The compensation deferred under the Plan are credited to a bookkeeping
account established in the name of each participant. A participant's bookkeeping
account may also be credited with non-elective excess contributions that could
not be made under the Registrant's tax-qualified defined contribution plan as
well as other non-elective employer contributions, more fully described in the
attached Plan document. The ultimate value of each participant's account will be
based on the performance of benchmark investment funds selected by the
participant under the Plan for purposes of accounting (as if the deferred
compensation had been so invested) but not necessarily for actual investment.
Obligations are generally payable under the Plan upon the earliest of
participant's termination of employment, disability or death. Payment will be
made in a lump sum.
The Obligations cannot be assigned, alienated, pledged or encumbered by a
participant or beneficiary. The Human Resources and Compensation Committee of
the Board of Directors of the Registrant may amend or discontinue the Plan at
any time. No amendment will materially adversely affect the rights of
participants with respect to amounts credited at the time the amendment is
effective.
The foregoing is a brief description of the Plan. The official provisions
of the Plan are contained in the Plan document, which is attached as Exhibit 4.3
and is controlling in the event of a discrepancy.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being registered hereby has been passed upon
for the Registrant by Ronald T. Lindsay, Executive Vice President, General
Counsel and Secretary of
the Registrant. Mr. Lindsay is an officer of the Registrant and holds options to
purchase shares of stock of the Registrant and stock units that have certain
restrictions on their sale and transfer. Mr. Lindsay is currently eligible to
receive certain non-elective excess contributions under the Plan.
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.
The Plan provides that the Registrant will indemnify and defend the Plan
Administrator and members of the Human Resources and Compensation Committee
against all liabilities, damages, costs and expenses (including reasonable
attorneys' fees and amounts paid in settlement of any claims approved by the
Registrant (or the Affiliated Entity, as applicable) in writing in advance)
occasioned by any act or omission to act in connection with the Plan, if the act
or omission is in good faith.
Reference is made to Item 9 for the Registrant's undertakings with respect
to indemnification for liabilities arising under the Securities Act.
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 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 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 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.
(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 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 November 20,
2006.
BOWATER INCORPORATED
(Registrant)
By: /s/ David J. Paterson
-------------------------
David J. Paterson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ David J. Paterson President and Chief Executive Officer (principal November 20, 2006
--------------------- executive officer)
David J. Paterson
/s/ William G. Harvey Executive Vice President and Chief Financial Officer November 20, 2006
--------------------- (principal financial officer)
William G. Harvey
/s/ Joseph B. Johnson Vice President and Controller (principal accounting November 20, 2006
--------------------- officer)
Joseph B. Johnson
* Director November 20, 2006
--------------------
Richard B. Evans
* Director November 20, 2006
--------------------
Gordon D. Giffin
* Director November 20, 2006
--------------------
Ruth R. Harkin
* Director November 20, 2006
--------------------
L. Jacques Menard
Signature Title Date
* Director November 20, 2006
--------------------
Arnold M. Nemirow
* Director November 20, 2006
--------------------
John A. Rolls
* Director November 20, 2006
--------------------
Arthur R. Sawchuk
* Director November 20, 2006
--------------------
Bruce W. Van Saun
* Director November 20, 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/ Ronald T. Lindsay
---------------------------
Ronald T. Lindsay
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 Form 8-K dated July 27,
2005).
4.3* Bowater Incorporated Supplemental Retirement Savings Plan.
5.1* 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.
* Filed herewith