As Filed with the Securities and Exchange Commission on March 28, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
Kimberly-Clark Corporation
(Exact name of Registrant as specified in its charter)
Delaware 39-0394230
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
P.O. Box 619100 75261-9100
Dallas, Texas (Zip Code)
(Address of Principal Executive Offices)
Kimberly-Clark Corporation Incentive Investment Plan
Kimberly-Clark Corporation Retirement Contribution Plan
(Full Title of the Plans)
O. GEORGE EVERBACH
Senior Vice President -- Law and Government Affairs
P.O. Box 619100
Dallas, Texas 75261-9100
(972) 281-1200
(Name, Address and Telephone Number, Including Area Code,
of Agent for Service)
CALCULATION OF REGISTRATION FEE
=======================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
To be Registered Registered Per Share Offering Price Registration Fee
------------------------- ----------------- -------------- ------------------ ----------------
Common Stock, $1.25 par
value(1)............. 24,000,000 shares $ 44.93 (2) $1,078,320,000 (2) $ 87,236.09
Preferred Stock Purchase
Rights(1)............ 24,000,000 rights(3) (3) (3) (3)
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Kimberly-Clark Corporation Incentive
Investment Plan and Kimberly-Clark Corporation Retirement Contribution Plan
(collectively, the "Plans").
(2) Estimated solely for the purpose of calculating the registration fee
required by Section 6(b) of the Securities Act of 1933, as amended, pursuant
to Rule 457(c) thereunder, based on $44.93, the average of the high and low
prices of the Common Stock on March 26, 2003, as reported in the
consolidated reporting system.
(3) The Preferred Stock Purchase Rights initially are attached to and trade with
the shares of Common Stock being registered hereby. Value attributable to
such Rights, if any, is reflected in the market price of the Common Stock.
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The purpose of this registration statement is to register 24,000,000
additional shares (the "Additional Shares") of the Registrant's common stock,
$1.25 par value ("Common Stock"), and related plan interests, to be offered
under the Kimberly-Clark Corporation Incentive Investment Plan (the "IIP"), and
the Kimberly-Clark Corporation Retirement Contribution Plan (the "RCP"). On
January 1, 2003, the Kimberly-Clark Corporation Hourly Employees Incentive
Investment Plan was merged into the Kimberly-Clark Corporation Salaried
Employees Incentive Investment Plan, which was amended and restated as the IIP.
The shares of Common Stock offered under each of the Plans are held in the
Kimberly-Clark Corporation Defined Contribution Plans Trust, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Registrant with the SEC are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2002;
2. The Annual Report on Form 11-K of the Plans (and predecessors
thereof) for the year ended December 31, 2001;
3. The description of the Registrant's Common Stock contained in the
Proxy Statement/Prospectus constituting a part of the Registrant's
Registration Statement on Form S-4 (Registration No. 333-94139); and
4. The description of the Registrant's Preferred Stock Purchase Rights
contained in Registration Statements on Form 8-A and amendments thereto
filed by the Registrant with the SEC on June 21, 1988, June 13, 1995 and
March 17, 1997.
All documents filed by the Registrant and the Plans pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), 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 herein and to be a part hereof from the
dates of filing of such reports and 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 other subsequently
filed document which also is incorporated or 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's By-laws (the "By-Laws") provide, among other things, that
the Registrant shall (i) 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, administrative or investigative
(other than an action by or in the right of the Registrant) by reason of the
fact that he is or was a Director or officer of the Registrant, or is or was
serving at the request of the Registrant as a Director or officer of another
corporation, or, in the case of a Director or officer of the Registrant, is or
was serving as an employee or agent of a partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and (ii) indemnify any
person 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
Registrant to procure a judgment in its favor by reason of the fact that he is
or was a Director or officer of the Registrant, or is or was serving at the
request of the Registrant as a Director or officer of another corporation, or,
in the case of a Director or officer of the Registrant, is or was serving as an
employee or agent of a partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant 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 Registrant unless
and only to the extent that the Court of Chancery or the 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. Notwithstanding the
foregoing, the Registrant is not required to indemnify any Director or officer
of the Registrant in connection with a proceeding (or portion thereof) initiated
by such Director or officer against the Registrant or any Directors, officers or
employees thereof unless (i) the initiation of such proceeding (or portion
thereof) was authorized by the Board of Directors of the Registrant or (ii)
notwithstanding the lack of such authorization, the person seeking
indemnification is successful on the merits. The By-Laws further provide that
the indemnification provided therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled.
Section 145 of the General Corporation Law of the State of Delaware
authorizes indemnification by the Registrant of Directors and officers under the
circumstances provided in the provisions of the By-Laws described above, and
requires such indemnification for expenses actually and reasonably incurred to
the extent a Director or officer is successful in the defense of any action, or
any claim, issue or matter therein.
The Registrant has purchased insurance which purports to insure the
Registrant against certain costs of indemnification which may be incurred by it
pursuant to the By-Laws and to insure the officers and Directors of the
Registrant, and of its subsidiary companies, against certain liabilities
incurred by them in the discharge of their functions as such officers and
directors except for liabilities resulting from their own malfeasance.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(a) The following is a list of Exhibits included as part of this
Registration Statement. The Registrant agrees to furnish supplementally a copy
of any omitted schedule to the SEC upon request. Items marked with an asterisk
are filed herewith.
4.1 -- Restated Certificate of Incorporation of the
Registrant, dated June 12, 1997, is hereby
incorporated by reference to Exhibit No. 3a to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999.
4.2 -- By-laws of the Registrant, as amended November 12, 2002,
are hereby incorporated by reference to Exhibit No. 3(b)
to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 2002.
4.3 -- Rights Agreement dated as of June 21, 1988, as amended and
restated as of June 8, 1995, between the Registrant and
The First National Bank of Boston, as Rights Agent, is
hereby incorporated by reference to Exhibit No. 1 to
the Registration Statement on Form 8-A/A of the Registrant
filed with the SEC on June 13, 1995.
4.4 -- Certificate of Adjustment, dated March 7, 1997, filed by
the Registrant with The First National Bank of Boston,
as Rights Agent, is hereby incorporated by reference to
Exhibit No. 2 to the Registration Statement on Form 8-A/A
of the Registrant filed with the SEC on March 17, 1997.
4.5* -- Kimberly-Clark Corporation Defined Contribution Plans
Trust and First, Second, Third and Fourth Amendments
thereto.
4.6* -- Kimberly-Clark Corporation Incentive Investment Plan.
4.7* -- Kimberly-Clark Corporation Retirement Contribution Plan.
23.1* -- Consent of Deloitte & Touche LLP.
24* -- Powers of Attorney.
(b) The Registrant will submit or has submitted the IIP and the RCP and any
amendment thereto to the Internal Revenue Service (the "IRS") in a timely manner
and has made or will make all changes required by the IRS in order to qualify
such Plans.
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, as amended (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; and notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(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; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 with or furnished to the
SEC by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the 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 Section 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 SEC 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 of 1933, as amended, 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 Irving, State of Texas, on March 28, 2003.
KIMBERLY-CLARK CORPORATION
By: /s/ THOMAS J. FALK
-----------------------
Thomas J. Falk
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ THOMAS J. FALK Chairman of the Board and March 28, 2003
----------------------- Chief Executive Officer and
Thomas J. Falk Director (principal
executive officer)
/s/ MARK A. BUTHMAN Senior Vice President and March 28, 2003
----------------------- Chief-Financial Officer
Mark A. Buthman (principal financial
officer)
/s/ RANDY J. VEST Vice President and March 28, 2003
----------------------- Controller
Randy J. Vest (principal accounting
officer)
DIRECTORS
* *
_______________________________ ____________________________
Dennis R. Beresford Claudio X. Gonzalez
* *
_______________________________ ____________________________
John F. Bergstrom Mae C. Jemison
* *
_______________________________ ____________________________
Pastora San Juan Cafferty Linda Johnson Rice
* *
_______________________________ ____________________________
Paul J. Collins Wolfgang R. Schmitt
* *
_______________________________ ____________________________
Robert W. Decherd Marc J. Shapiro
* *
_______________________________ ____________________________
William O. Fifield Randall L . Tobias
March 28, 2003
* By: /s/ O. GEORGE EVERBACH
-----------------------
O. George Everbach
Attorney-in-Fact
The Plans
Pursuant to the requirements of the Securities Act of 1933, as amended,
Kimberly-Clark Corporation, as Plan Administrator of the Plans, has duly caused
this Registration Statement to be signed by the undersigned, thereunto duly
authorized, in the City of Knoxville, State of Tennessee, on March 28, 2003.
KIMBERLY-CLARK CORPORATION
INCENTIVE INVESTMENT
PLAN
KIMBERLY-CLARK CORPORATION
RETIREMENT CONTRIBUTION PLAN
(The Plans)
By: /s/ JANE P. NERISON
----------------------
Jane P. Nerison
Vice President -- Compensation and Benefits
Kimberly-Clark Corporation
EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration
Statement. Items marked with an asterisk are filed herewith.
No. Description of Exhibit
------ ------------------------------------------------------------
4.1 -- Restated Certificate of Incorporation of the
Registrant, dated June 12, 1997, is hereby
incorporated by reference to Exhibit No. 3a to the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1999.
4.2 -- By-laws of the Registrant, as amended November 12, 2002,
are hereby incorporated by reference to Exhibit No. 3(b)
to the Registrant's Annual Report on Form 10-K for the
year ended December 31, 2002.
4.3 -- Rights Agreement dated as of June 21, 1988, as amended
and restated as of June 8, 1995, between the
Registrant and The First National Bank of Boston, as
Rights Agent, is hereby incorporated by reference to
Exhibit No. 1 to the Registration Statement on Form 8-A/A
of the Registrant filed with the SEC on June 13, 1995.
4.4 -- Certificate of Adjustment, dated March 7, 1997, filed by
the Registrant with The First National Bank of
Boston, as Rights Agent, is hereby incorporated by
reference to Exhibit No. 2 to the Registration Statement
on Form 8-A/A of the Registrant filed with the SEC on
March 17, 1997.
4.5* -- Kimberly-Clark Corporation Defined Contribution Plans
Trust and First, Second, Third and Fourth Amendments
thereto.
4.6* -- Kimberly-Clark Corporation Incentive Investment Plan.
4.7* -- Kimberly-Clark Corporation Retirement Contribution Plan.
23.1* -- Consent of Deloitte & Touche LLP.
24* -- Powers of Attorney.