As filed
with the Securities and Exchange Commission on November 5, 2009
Registration
No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
__________________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
ASHLAND
INC.
(Exact
Name of Registrant as Specified in Its Charter)
|
Kentucky
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
20-0865835
(I.R.S.
Employer
Identification
Number)
|
__________________
50
E. RiverCenter Boulevard
P.
O. Box 391
Covington,
Kentucky 41012-0391
Telephone: (859)
815-3333
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
__________________
David
L. Hausrath, Esq.
Senior
Vice President and General Counsel
50
E. RiverCenter Boulevard
P.
O. Box 391
Covington,
Kentucky 41012-0391
Telephone: (859)
815-3333
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent
for Service)
Copy to:
|
Jeffrey
J. Margulies, Esq.
Squire,
Sanders & Dempsey L.L.P.
4900
Key Tower
127
Public Square
Cleveland,
Ohio 44114-1304
Telephone: (216)
479-8500
|
Approximate date of commencement of
proposed sale to the public: From time to time after the
effective date of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. x
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act.
|
Large
accelerated filer x
|
Accelerated
filer o
|
||
|
Non-accelerated
filer o(Do
not check if a smaller reporting company)
|
Smaller
reporting company o
|
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities
to
be Registered
|
Amount
to be Registered
|
Proposed
Maximum Offering Price Per Unit
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Common
Stock, $0.01 par value
|
2,974,420
(1)
|
$34.07
(2)
|
$101,338,490
(2)
|
$5,655
(2)
|
|
(1)
|
Pursuant
to Rule 416 under the Securities Act of 1933, the Registrant also is
registering an indeterminate number of shares of common stock as may be
issued from time to time as a result of stock splits, stock dividends or
similar transactions.
|
|
|
(2)
|
Estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(c)
promulgated under the Securities Act of 1933, as amended, based on the
average of the high and low prices of the common stock reported on the New
York Stock Exchange on October 30, 2009. This
registration fee was previously paid in connection with the filing of a
Form S-3 (Registration No. 333-162853) by the Registrant, Ashland Inc., on
November 3, 2009, which Form S-3 was withdrawn by the Registrant on
November 5, 2009 prior to the sale of any securities covered by the Form
S-3. Pursuant to Rule 457(p) under the Securities Act of 1933,
as amended, the $5,655 registration fee previously paid in connection with
the withdrawn Form S-3 (Registration No. 333-162853) is hereby offset
against the registration fee due for the shares of common stock being
registered
hereby.
|
__________________
PROSPECTUS
ASHLAND
INC.
COMMON
STOCK
2,974,420
Shares
____________________
This
prospectus relates to the resale, from time to time, of shares of common stock
of $0.01 par value of Ashland Inc. that we have contributed to the Ashland
Hercules Pension Plan. The shares of common stock to which this
prospectus relates are held by The Bank of New York Mellon, as trustee of the
Ashland Inc. Defined Benefit Master Trust, the trust for the Ashland Hercules
Pension Plan. This trustee is referred to in this prospectus as the
Selling Shareholder. The shares of common stock will be sold only
upon instructions from Evercore Trust Company, N.A., an independent third-party
investment fiduciary appointed to manage these shares of common stock, which
fiduciary will determine the time and manner of any sale of
shares. See “Selling Shareholder.”
The
shares of common stock to which this prospectus relates may be sold from time to
time through public or private transactions on or off the New York Stock
Exchange, or NYSE, at prevailing market prices or negotiated
prices.
The
proceeds from the sale of the shares of common stock to which this prospectus
relates are solely for the account of the Selling Shareholder. We
will not receive any of the proceeds from any such sales. See “Use of
Proceeds.”
You
should read this prospectus and any applicable prospectus supplement, including
any documents incorporated by reference, carefully before you invest in our
common stock.
Our
common stock trades on the NYSE under the symbol “ASH.” On November
3, 2009, the last reported sale price of our common stock on the NYSE was
$34.70.
Our
principal executive offices and headquarters are located at 50 E. RiverCenter
Boulevard, Covington, Kentucky 41011-1678, and our telephone number is (859)
815-3333.
This
investment involves risks. See “Risk Factors” beginning on page
1.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
____________________
The date
of this prospectus is November 5, 2009.
TABLE
OF CONTENTS
Page
|
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About
this
Prospectus...............................................................................................................................................................................
i
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Risk
Factors..................................................................................................................................................................................................
1
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Where
You Can Find More
Information.................................................................................................................................................. 2
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|
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Incorporation
of Documents by
Reference.............................................................................................................................................
2
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|
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Disclosure
Regarding Forward-Looking
Statements.............................................................................................................................
3
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Ashland ....................................................................................................................................................................................................... 5
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Use
of
Proceeds.......................................................................................................................................................................................... 9
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|
|
Selling
Shareholder..................................................................................................................................................................................... 9
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|
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Plan
of
Distribution..................................................................................................................................................................................... 9
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|
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Description
of Capital
Stock......................................................................................................................................................................
10
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|
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Legal
Matters..............................................................................................................................................................................................
13
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Experts..........................................................................................................................................................................................................
13
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or SEC, using a “shelf” registration
process. Under this shelf registration process, the Selling
Shareholder may, from time to time, offer shares of our common stock in one or
more offerings.
This
prospectus provides you with a general description of our common
stock. Some transactions in which the Selling Shareholder offers
shares of our common stock under this registration statement may require that we
provide a prospectus supplement that will contain additional information about
the terms of that offering. The prospectus supplement may also add
to, update or change information contained in this prospectus. To the
extent information in this prospectus is inconsistent with information contained
in a prospectus supplement, you should rely on the information in the prospectus
supplement. We urge you to read this prospectus and any
prospectus supplement, together with the additional information described below
under the headings “Where You Can Find More Information” and “Incorporation of
Documents by Reference.”
You
should rely only on the information contained or incorporated by reference in
this prospectus and in any prospectus supplement. We have not
authorized anyone to provide you with different information. You
should not assume that the information contained in this prospectus, any
prospectus supplement or any document incorporated by reference is accurate as
of any date other than the dates of those documents, as our business, financial
condition and results of operations and prospects may have changed since those
dates.
This
prospectus and any prospectus supplement does not and will not constitute an
offer to sell our common stock in any jurisdiction in which such offer or sale
would be unlawful.
Unless
the context would indicate otherwise, as used in this prospectus and any
prospectus supplement, the terms “Ashland,” “we,” “us” or “our,” refer to
Ashland Inc. and its consolidated subsidiaries.
i
RISK
FACTORS
An
investment in our common stock is subject to risks and
uncertainties. You should carefully consider all of the information
contained or incorporated by reference in this prospectus before deciding
whether to purchase shares. In
particular, you should carefully consider the risks and uncertainties included
in the “Risk Factors” sections of our Annual Report on Form 10-K for the year
ended September 30, 2008 and Quarterly Reports on Form 10-Q for the periods
ended December 31, 2008 and June 30, 2009 and incorporated by reference into
this prospectus, as well as those referred to below. Realization of
any of these risks could have a material adverse effect on our business,
financial condition, cash flows and results of operations or could materially
affect the value or liquidity of our common stock and result in the loss of all
or part of your investment. Additional risks and uncertainties not
currently known to us or that we currently deem to be immaterial may also
materially adversely affect our business operations, which also could result in
the loss of all or part of your investment.
Risks
Relating to Ownership of Our Common Stock
The
market price and trading volume of our common stock may be volatile, which may
make it difficult for you to resell your shares of common stock when you want or
at prices you find attractive.
The
market price of our common stock may fluctuate in response to the following
factors, some of which are beyond our control:
-
fluctuations in our operating results, including results that vary from expectations of management, analysts and investors;
-
changes in investors’ and analysts’ perception of the business risks and conditions of our business;
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broader market fluctuations;
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general financial, economic and political conditions;
-
regulatory changes affecting our industry generally or our business and operations;
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announcements of strategic developments, acquisitions, financings and other material events by us or our competitors;
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the sale of a substantial number of shares of our common stock held by existing security holders in the public market; and
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general conditions in the chemicals industry.
The stock
markets in general have experienced extreme volatility that has at times been
unrelated to the operating performance of particular companies. These
broad market fluctuations may adversely affect the trading price of our common
stock, make it difficult to predict the market price of our common stock in the
future and cause the value of your investment to decline.
There
may be future sales or other dilution of our equity, which may adversely affect
the market price of our common stock.
We are
not restricted from and shareholder approval is not required to issue additional
common stock, including securities that are convertible into or exchangeable
for, or that represent the right to receive, common stock except any shareholder
approval required by the NYSE. Sales of a substantial number of
shares of our common stock or other equity-related securities in the public
market could depress the market price of our common stock. We cannot
predict the effect that future sales of our common stock or other equity-related
securities would have on the market price of our common stock.
1
You
may not receive dividends on the common stock.
Holders
of our common stock are only entitled to receive such dividends as our Board of
Directors may declare out of funds legally available for such
payments. Our ability to make dividend payments on the common stock
depends in part on the generation of cash flow by our subsidiaries and their
ability to make such cash available to us, by dividend, debt repayment or
otherwise. Our subsidiaries may not be able to, or be permitted to,
make distributions to us. Each of our subsidiaries is a distinct
legal entity and, under certain circumstances, legal and contractual
restrictions may limit our ability to obtain cash from our
subsidiaries. Although the Board has historically declared cash
dividends on our common stock, it is not required to do so and may reduce or
eliminate our common stock dividend in the future, including in the event that
we do not receive distributions from our subsidiaries.
Our
common stock is equity and is subordinate to our existing and future
indebtedness and effectively subordinated to all the indebtedness claims against
our subsidiaries.
Shares of
our common stock are equity interests and do not constitute
indebtedness. As such, shares of our common stock will rank junior to
all of our indebtedness and to other non-equity claims against us and our assets
available to satisfy claims against us, including in a
liquidation. In addition, our right to participate in any
distribution of assets of any of our subsidiaries upon the subsidiary’s
liquidation or otherwise, and thus your ability as a holder of the common stock
to benefit indirectly from such distribution, will be subject to the prior
claims of creditors of that subsidiary, except to the extent that any of our
claims as a creditor of such subsidiary may be recognized. As a
result, the common stock effectively is subordinated to all existing and future
liabilities and obligations of our subsidiaries. As of September 30,
2009, we had approximately $1.6 billion of outstanding long-term
debt.
WHERE
YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement on Form S-3 under the Securities Act
of 1933 with respect to the common stock that may be offered and sold under this
prospectus. This prospectus does not contain all of the information
set forth in the registration statement, certain parts of which are omitted in
accordance with the rules and regulations of the SEC, and further information
about us is contained in the registration statement and its
exhibits. Statements contained in this prospectus as to the contents
of any contract, agreement or other document referred to are not necessarily
complete, and you should refer to the copy of the contract, agreement or other
document filed as an exhibit to the registration statement for more complete
information, as each statement is qualified in all respects by this
reference.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy, at prescribed rates, these
reports, proxy statements and other information filed at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549. You may
obtain information regarding the operation of the public reference room by
calling 1-800-SEC-0330. The SEC also maintains a website that
contains reports, proxy statements and other information that we file
electronically with the SEC at http://www.sec.gov, and these documents are also
available through our website at www.ashland.com. Information
contained on or linked to or from our website is not incorporated by reference
in or a part of this prospectus. Our SEC filings and other
information about us also are available through the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus documents that we have filed with the SEC. This permits us to disclose important information to you by referring you to those documents. Information incorporated by reference is an important part of this prospectus, and certain information that we file later with the SEC will automatically update and supersede the information contained and incorporated by reference in this prospectus. We are incorporating by reference the following documents:
2
-
Our Annual Report on Form 10-K for the year ended September 30, 2008;
-
Our Quarterly Reports on Form 10-Q for the quarters ended December 31, 2008, March 31, 2009 and June 30, 2009;
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Our Current Reports on Form 8-K filed with the SEC on November 14, 2008, November 19, 2008, November 20, 2008 (three), December 1, 2008, December 16, 2008, December 18, 2008, January 7, 2009, March 3, 2009, May 13, 2009 (under Item 8.01 only), May 26, 2009, June 1, 2009, June 23, 2009, and August 31, 2009;
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The description of our common stock contained in our registration statement on Form S-4 filed with the SEC on August 8, 2008, as amended, as modified by the Description of Capital Stock contained in this prospectus; and
-
All documents filed by us with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus and prior to the termination of the offering made pursuant to this prospectus and any applicable prospectus supplement.
Any
statement contained in a document incorporated by reference in this prospectus
or any applicable prospectus supplement shall be deemed to be modified or
superseded for the purposes of this prospectus or the applicable prospectus
supplement to the extent that a statement contained in this prospectus, in the
applicable prospectus supplement or in any other subsequently filed document
that is also incorporated by reference in this prospectus 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
prospectus or any applicable prospectus supplement.
We will
provide without charge, upon written or oral request, a copy of any or all of
the documents that are incorporated by reference into this prospectus or any
applicable prospectus supplement, other than exhibits to those documents unless
the exhibits are specifically incorporated by reference in such
documents. You may request a copy of these documents at the following
addresses and telephone number:
Ashland
Inc.
Investor
Relations
50
E. RiverCenter Boulevard
P.
O. Box 391
Covington,
Kentucky 41012-0391
Telephone: (859)
815-4454
e-mail: investor_relations@ashland.com
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
Some of
the statements contained or incorporated by reference in this prospectus and any
prospectus supplement are forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933. In some cases, you can
identify forward-looking statements by terms such as “anticipates,” “believes,”
“could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,”
“predicts,” “projects,” “should,” “will,” “would” and similar expressions
intended to identify forward-looking statements. Forward-looking
statements are not historical facts, but instead represent only our
expectations, estimates and projections regarding future
events. These statements are not guarantees of future performance and
involve certain risks and uncertainties that are difficult to predict, which may
include market, business, legal and operational uncertainties discussed
elsewhere in this prospectus or a prospectus supplement, and which may be beyond
our control. Factors that could affect our future results and
financial condition are discussed in the “Management’s Discussion and Analysis,”
“Risk Factors” and “Forward-Looking Statements” sections in each of our annual
report on Form 10-K for the year ended September 30, 2008 and our interim
quarterly reports on Form 10-Q for the quarters ended December 31, 2008, March
31, 2009 and June 30, 2009, which are incorporated by reference into this
prospectus.
Our
actual results and financial condition may differ, perhaps materially, from the
anticipated results and financial condition in any forward-looking statements,
and readers are cautioned not to place undue reliance on such
statements.
3
Any
forward-looking statement should be considered in light of these factors and
reflects our belief only at the time the statement is made. We assume no
obligation to update or revise any forward-looking statements to reflect actual
results, changes in assumptions or changes in other factors affecting the
forward-looking statements.
4
ASHLAND
Our
company, founded in 1924 and headquartered in Covington, Kentucky, provides
specialty chemical products, services and solutions and is a leading distributor
of chemicals and plastics and a provider of automotive lubricants, car-care
products and quick-lube services. We currently have sales in more
than 100 countries and approximately 15,000 employees worldwide. We
operate through five reportable segments: Ashland Aqualon Functional
Ingredients, Ashland Hercules Water Technologies, Ashland Performance Materials,
Ashland Consumer Markets (Valvoline), and Ashland Distribution.
During
the past several years, we have been focused on the objective to create a
dynamic, global specialty chemicals company. In that process, we have
divested noncore businesses, redesigned business models, and acquired businesses
in growth markets like water and adhesives to enhance our specialty chemicals
offerings. On November 13, 2008, we completed our acquisition of
Hercules Incorporated, or Hercules, a leading manufacturer and marketer of
specialty chemicals and related services for a broad range of business, consumer
and industrial applications. We believe this acquisition provides us
with several strategic benefits, including the creation of a major, global
specialty chemicals company with broad geographic reach, a focus on businesses
that are leaders in their market segments and growth potential in specialty
additives and functional ingredients, paper and water technologies and specialty
resins.
Ashland
Aqualon Functional Ingredients
Ashland
Aqualon Functional Ingredients offers products that are primarily designed to
modify the properties of aqueous systems. Most of Functional
Ingredients’ products are sold as key ingredients to other manufacturers where
they are used as small-quantity additives to provide functionality such as
thickening and rheology control; water retention; adhesive strength; binding
power; film formation; protective colloid, suspending and emulsifying action;
foam control; and pH stability. Functional Ingredients has a
diversified, global customer base across nearly all of its businesses serving a
broad range of applications within each business.
Functional
Ingredients is comprised of the following businesses:
Regulated Industries —
Regulated Industries’ food applications include bakery, beverage, confectionary,
dairy, meat, meat analogues and pet food, prepared foods and sauces, dressings
and fillings. Personal care applications include cosmetics, hair care, oral
care, skin care, wound care and household products. In the
pharmaceutical industry, Regulated Industries’ products are used for tablet
binding, coatings, modified release and liquid and semi-liquid rheology
control.
Coatings Additives —Coatings
Additives offers a portfolio of complete rheology solutions for consistent,
superior performance at very low use levels. For manufacturers of
paints and other waterborne coatings products, these additives are crucial in
controlling key product characteristics such as gloss, spatter, leveling and
build, all of which are critical to delivering paints and coatings that fill
specific market demand.
Construction — Construction’s
product applications include tile and adhesive cements, gypsum plasters,
renders, joint compounds, concrete, external insulation systems, masonry and
mortar cements and self-leveling compounds and provide a comprehensive array of
functional properties including thickening, water retention, sag resistance,
workability and consistency, adhesion, stabilization, pumping, rheological
properties and strength.
Energy and Specialties
Solutions — Energy and Specialties Solutions offers water-soluble
solutions for a variety of applications in the oil and gas industries including
completion and workover fluids, drill-in fluids, oil-well cementing slurries,
sodium formate, solvent thickeners and stimulation and hydraulic
fracturing. This business also provides high-performance products to
the industrial specialties market including applications in adhesives and glues,
agricultural products, ceramics, fire-fighting fluids, foundry, industrial
cleaners, inks and printing, mining, paint removers, paper and paper coatings,
suspension polymerization, tobacco and welding rods.
5
Ashland
Hercules Water Technologies
Ashland
Hercules Water Technologies is a global service business delivering
differentiated specialty chemical products to several industries including the
paper, pulp, chemical, commercial and institutional, food and beverage, mining
and municipal industries. Water Technologies is a leading global
producer of papermaking chemicals for pulp and paper processing, tissues and
towels, packaging, printing and writing papers, and virgin and deinked
pulps. Its process, water treatment and functional chemistries are
used to improve operational efficiencies, enhance product quality, protect plant
assets and ensure environmental compliance.
Water
Technologies is comprised of the following businesses:
Functional Chemistries — The
Functional Chemistries business produces specialized chemicals for the paper
industry that impart specific properties such as strength, liquid holdout and
printability to the final paper or board. Product lines include
sizing agents, wet/dry strength additives and very specific products such as
crepe and release additives for tissue manufacturing.
Process Chemistries — The
Process Chemistries business manufactures and sells a broad array of deposit
control agents, defoamers, biocides and other process additives for markets
including pulp and paper manufacturing, food processing, oil refining and
chemical processing, general manufacturing and
extraction/mining. This business’s products are designed to deliver
benefits such as enhanced operational efficiencies, system cleanliness, and
superior performance in a wide variety of manufacturing operations
globally.
Water Treatment Chemistries —
The Water Treatment Chemistries business provides specialized chemicals and
consulting services for the utility water treatment market, which includes
boiler water, cooling water, fuel and waste streams. Programs include
performance-based feed and control automation and remote system
surveillance. These products and services help ensure that water
meets desired specifications, and aid in asset preservation and longevity as
well as odor control.
Ashland
Performance Materials
Ashland
Performance Materials is a worldwide manufacturer and supplier of specialty
chemicals and customized services to the building and construction,
transportation, metal casting, packaging and converting, and marine
markets. It is a technology leader in unsaturated polyester and vinyl
ester resins and gelcoats; high-performance adhesives and specialty resins; and
metal casting consumables and design services.
Performance
Materials is comprised of the following businesses:
Composites and Adhesives —
The Composites and Adhesives business manufactures and sells a broad range of
corrosion-resistant, fire-retardant, general-purpose and high-performance grades
of unsaturated polyester and vinyl ester resins, gelcoats and low-profile
additives for the reinforced plastics industry. Key markets include
the transportation, construction, marine and infrastructure end
markets. It also markets vinyl ester resins under the DERAKANE®,
HETRON® and AROPOL® brand names.
The
Composites and Adhesives business also manufactures and sells adhesive solutions
to the packaging and converting, building and construction, and transportation
markets and manufactures and markets specialty coatings and adhesive solutions
across the printing industry. Key technologies and markets include:
acrylic polymers for pressure-sensitive adhesives; polyvinyl acetate emulsions;
urethane adhesives for flexible packaging applications; aqueous and
radiation-curable adhesives and specialty coatings for the printing and
converting applications; hot-melt adhesives for various packaging applications;
emulsion polymer isocyanate adhesives for structural wood bonding; elastomeric
polymer adhesives and butyl rubber roofing tapes for commercial roofing
applications; acrylic, polyurethane and epoxy structural adhesives for bonding
fiberglass reinforced plastics, composites, thermoplastics and metals in
automotive, marine, recreational and industrial applications; specialty phenolic
resins for paper impregnation and friction material bonding.
6
Casting Solutions — Casting
Solutions manufactures and sells metal casting chemicals worldwide, including
sand-binding resin systems, refractory coatings, release agents, engineered sand
additives and riser sleeves. This business also provides casting
process modeling, core-making process modeling and rapid prototyping
services. In June 2008, Ashland and Süd-Chemie AG signed a nonbinding
memorandum of understanding to form a new, global 50-50 joint venture to serve
the foundries and the metal casting industry. The joint venture would
combine three businesses: Ashland’s Casting Solutions business, the
foundry-related businesses of Süd-Chemie, and Ashland-Südchemie-Kernfest GmbH,
the existing European-based joint venture between Ashland and
Süd-Chemie. As a result of global economic developments, the scope
and other aspects of this project are being re-evaluated by Ashland and
Süd-Chemie AG.
Ashland
Consumer Markets
Ashland
Consumer Markets markets premium packaged automotive lubricants, chemicals,
appearance products, antifreeze and filters, with sales in more than 100
countries. Consumer Markets’ Valvoline® trademark was federally
registered in 1873 and is the oldest trademark for lubricating oil in the United
States. Consumer Markets markets the following key brands of products
and services to the private passenger car, light truck and heavy duty markets:
Valvoline® lubricants; Valvoline Premium Blue® commercial lubricants; MaxLife®
automotive products for vehicles with 75,000 or more miles; Valvoline
Professional Series® automotive chemicals; Pyroil® automotive chemicals; Eagle
One® automotive appearance products; Car Brite® automotive reconditioning
products; Zerex® antifreeze; Tectyl® industrial products; and Valvoline Instant
Oil Change® automotive services.
Consumer
Markets is comprised of the following businesses:
Do It Yourself — The Do It
Yourself business sells Valvoline and other branded products and private label
products to consumers who perform their own auto maintenance. These
products are sold through retail auto parts stores such as AutoZone and Advance
Auto Parts, mass merchandisers such as Wal-Mart Stores, Inc., and warehouse
distributors and their affiliated jobber stores such as NAPA and
CARQUEST.
Installer Channels — The
Installer Channels business sells branded products and services to installers
(such as car dealers, general repair shops and quick lubes) and to auto auctions
through a network of independent distributors and company-owned and operated
“direct market” operations. This business also includes distribution
to quick lubes branded “Valvoline Express Care®,” which consists of 355
independently owned and operated stores.
Valvoline Instant Oil Change
— The Valvoline Instant Oil Change® chain is the second largest competitor in
the U.S. “fast oil change” service business, providing Consumer Markets with a
significant presence in the installer channels segment of the passenger car and
light truck motor oil market. As of September 30, 2009, 259
company-owned and 592 independently-owned and operated franchise Valvoline
Instant Oil Change centers were operating in 40 states. These centers
offer customers an innovative computer-based preventive maintenance tracking
system that allows service technicians to make service recommendations based
primarily on manufacturers’ recommendations.
Commercial & Industrial —
The Commercial & Industrial business sells branded products and services to
on-highway fleets, construction companies and original equipment manufacturers
(OEMs) through company-owned and operated “direct market” operations, national
accounts and a network of distributors. This business also maintains
a strategic alliance with Cummins Inc. to distribute heavy duty lubricants to
the commercial market, as well as smaller alliances with other global
OEMs.
Valvoline International —
Outside of North America, Valvoline International markets Valvoline®, Eagle
One®, Zerex® and other branded products through wholly-owned affiliates, joint
ventures, licensees and independent distributors in more than 100
countries. Valvoline International operates joint ventures with
Cummins in Argentina, Brazil, China and India. In addition, Valvoline
International operates joint ventures with local entities in Ecuador, Thailand
and Venezuela. Valvoline International markets products for both
consumer and commercial vehicles and equipment and is served by company-owned
plants in the United States, Australia and the Netherlands and by toll
manufacturers.
7
Ashland
Distribution
Ashland
Distribution distributes chemicals, plastics and composite raw materials in
North America and plastics in Europe and China. Distribution also
provides environmental services, including hazardous and nonhazardous waste
collection, recovery, recycling and disposal, in North
America. Deliveries are made in North America through a network of
owned, leased and third-party warehouses, as well as rail and tank
terminals.
Distribution
operates the following businesses:
Chemicals — The Chemicals
business distributes specialty and industrial chemicals, additives and solvents
to industrial users in North America as well as some export
operations. Markets served include the paint and coatings, personal
care, inks, adhesives, polymer, rubber, industrial and institutional
compounding, automotive, appliance, oil and gas and paper
industries.
Plastics — The Plastics
business offers a broad range of thermoplastic resins, and specialized technical
service to processors in North America as well as some export
operations. Processors include injection molders, extruders, blow
molders and rotational molders. This business provides plastic
material transfer and packaging services and less-than-truckload quantities of
packaged thermoplastics. It also markets a broad range of
thermoplastics to processors in Europe.
Composites — The Composites
business supplies mixed truckload and less-than-truckload quantities of
polyester thermoset resins, fiberglass and other specialty reinforcements,
catalysts and allied products to customers in the cast polymer, corrosion,
marine, building and construction, and other specialty reinforced plastics
industries through distribution facilities located throughout North
America. It also offers Ashland’s own line of resins and gelcoats,
serving the fiber-reinforced plastics and cast-polymer industries.
Environmental Services — The
Environmental Services business, working in cooperation with chemical waste
service companies, provides customers, including major automobile manufacturers,
with comprehensive, nationwide hazardous and nonhazardous waste collection,
recovery, recycling and disposal services. These services are offered
through a North American network of distribution centers, including several
storage facilities that have been fully permitted by the United States
Environmental Protection Agency.
8
USE
OF PROCEEDS
The
proceeds from any sales of the common stock to which this prospectus relates are
solely for the account of the Selling Shareholder. We will not
receive any of the proceeds from any such sales.
SELLING
SHAREHOLDER
This
prospectus covers the resale, from time to time, by the Selling Shareholder of
shares of our common stock that we have contributed to the Ashland Hercules
Pension Plan.
The
Selling Shareholder may offer and sell, from time to time, all or any of the
shares of common stock that are the subject of this prospectus and any
applicable prospectus supplement, but it is under no obligation to offer or sell
any of such shares. Because the Selling Shareholder may sell all,
some or none of the shares of common stock to which this prospectus relates, and
may acquire additional shares from us in the future, we cannot determine the
number of shares of common stock that will be sold by the Selling Shareholder or
the amount or percentage of shares of common stock that will be held by the
Selling Shareholder upon termination of any particular offering.
The
Selling Shareholder is the trustee of a tax-qualified trust that holds the
assets of the Ashland Hercules Pension Plan. The shares of common
stock are held in the custody of the trustee. We currently have
ongoing banking relationships with affiliates of the trustee in the ordinary
course of business and expect to continue to have similar relationships with the
trustee in the future. The shares of common stock are held in a
separate investment account at the trustee. Evercore Trust Company,
N.A., an independent third-party investment fiduciary, has been appointed by our
Board of Directors to instruct the trustee as to any disposition of shares of
common stock held by the Selling Shareholder. Evercore has sole
authority to manage the shares of common stock contributed by us to the Ashland
Hercules Pension Plan, subject to general investment criteria established by
us.
The
shares offered by this prospectus are the only shares of our common stock owned
by the Selling Shareholder as of November 3, 2009.
PLAN
OF DISTRIBUTION
The
Selling Shareholder may offer the shares from time to time, depending on market
conditions and other factors, in one or more transactions on the New York Stock
Exchange or any other national securities exchange or automated interdealer
quotation system on which shares of our common stock are then listed, through
negotiated transactions or otherwise. The shares may be sold at
prices and on terms then prevailing, at prices related to the then-current
market price or at negotiated prices. The shares may be offered in
any manner permitted by law, including through brokers, dealers or agents, and
directly to one or more purchasers. Sales of the shares may
involve:
-
block transactions in which the broker or dealer engaged will attempt to sell shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
-
purchases by a broker or dealer as principal and resale by the broker or dealer for its account; or
-
ordinary brokerage transactions and transactions in which a broker solicits purchasers.
Evercore,
the independent, third-party investment fiduciary, and the Selling Shareholder
will act independently of us with respect to the timing, manner and size of each
sale.
The
Selling Shareholder may, upon instructions from the independent, third-party
investment fiduciary, effect such transactions by selling shares of common stock
to or through broker-dealers. Such broker-dealers may receive
compensation in the form of discounts or commissions from the Selling
Shareholder and may receive commissions from the purchasers of shares for whom
they may act as agent in amounts to be negotiated. Such
9
compensation
may be received if the broker-dealer acts as either an agent or as a
principal. The Selling Shareholder does not expect these discounts or
commissions to exceed what is customary in the types of transactions
involved. Any offering price, and any discounts or concessions
allowed or reallowed or paid to dealers, may be changed from time to
time.
The
aggregate proceeds to the Selling Shareholder will be the sales price of the
shares of common stock, less discounts and commissions, if any.
In
offering the shares of common stock covered by this prospectus, the Selling
Shareholder and any broker-dealers or agents who execute sales for the Selling
Shareholder may be deemed to be “underwriters” within the meaning of the
Securities Act of 1933, as amended, in connection with such
sales. Any profits realized by the Selling Shareholder and the
compensation of any broker-dealer or agent may be deemed to be underwriting
discounts and commissions. We know of no existing arrangements
between the Selling Shareholder and any broker-dealer or other agent relating to
the sale or distribution of the shares of common stock. We have not
engaged any broker-dealer or agent in connection with the distribution of the
shares of common stock.
Broker-dealers
and agents, and their respective affiliates, may be engaged in transactions
with, or perform commercial or investment banking or other services for, us or
our subsidiaries or affiliates, in the ordinary course of business.
All of
the shares of common stock to which this prospectus relates will be listed on
the New York Stock Exchange.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is a summary and is qualified in its
entirety by reference to our articles of incorporation and by-laws, which are
filed as exhibits to the registration statement of which this prospectus is a
part, and by applicable law.
Our
authorized capital consists of 200,000,000 shares of common stock, par value
$.01 per share, and 30,000,000 shares of cumulative preferred stock, no par
value, in one or more series. At October 30, 2009, 74,915,769 shares
of common stock were outstanding. At that date, no preferred shares
of stock were outstanding.
Preferred
stock
Our Board
of Directors can, without the approval of shareholders, issue one or more series
of preferred shares. The Board can also determine the rights,
preferences and limitations of each series including the maximum number of
shares in the series, voting rights, conversion rights, redemption rights,
dividend rights, liquidation rights, any preferences over the common stock with
respect to dividend or liquidation distributions, and the terms and conditions
of issue.
Common
stock
Our
outstanding shares of common stock are listed on the NYSE under the symbol
“ASH.” Our transfer agent and registrar for common stock is
Computershare Trust Company, N.A.
Common
shareholders receive dividends only when declared by the Board of
Directors. If declared, dividends may be paid in cash, stock or other
forms. If and when we issue preferred stock, common shareholders may
not receive dividends until we have satisfied our obligations to any preferred
shareholders.
All
outstanding shares of common stock are fully paid and
nonassessable. There are no preemptive or other subscription rights,
conversion rights or redemption or sinking fund provisions with respect to the
shares of common stock.
10
Each
share of common stock is entitled to one vote in the election of directors and
other matters. In uncontested elections, directors are elected by a
majority of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present. In a contested election,
directors are elected by a plurality of the votes cast by the shares entitled to
vote in the election at a meeting at which a quorum is present.
Common
shareholders are not entitled to cumulative voting rights. Members of
our Board of Drectors serve three-year terms and such elections are
staggered. Directors may be removed from office only for cause by the
vote of at least 80% of the outstanding shares entitled to vote.
The
quorum required at a shareholders’ meeting for consideration of any matter is a
majority of the shares entitled to vote on that matter, represented in person or
by proxy. If a quorum is present, action on a matter is approved if
the votes cast in favor of the action exceed the votes cast against the action,
except for the election of directors as described above. However,
approval is required by 80% of the voting power of our outstanding common stock,
and 66-2/3% of the voting power other than voting stock beneficially owned by an
interested shareholder or affiliate who is a party to a business combination, in
the case of major corporate actions such as:
-
any merger or consolidation of the company or a subsidiary with an interested shareholder or other corporation that is or will become an affiliate of an interested shareholder;
-
the sale, lease, transfer or other disposition to an interested shareholder, other than in the ordinary course of business, of assets with an aggregate book value of 5% or more of the total market value of our outstanding stock or of our net worth;
-
the issuance or transfer of any equity securities which have an aggregate market value of 5% or more of the total market value of our outstanding stock to an interested shareholder;
-
adoption of any plan for liquidation or dissolution, in which anything other than cash will be received by an interested shareholder; or
-
any reclassification of securities, including any reverse stock split, recapitalization, merger or consolidation of the company with any subsidiary or other transaction which increases by 5% or more the proportion of outstanding shares beneficially owned by an interested shareholder.
Anti-takeover
effects
Certain
provisions of the Kentucky Business Corporation Act, or KBCA, and our articles
of incorporation and by-laws could make it more difficult for shareholders to
change the composition of the Board of Directors and may also have the effect of
discouraging a change of control transaction or limiting the price that certain
investors might be willing to pay in the future for our common
stock. These provisions include:
-
a provision found in Article IV of our articles of incorporation allowing the Board of Directors to issue preferred shares and to determine the rights and preferences of the preferred stock without any vote or action by the holders of common stock. In some cases, the issuance of preferred shares could delay a change in control of the company and make it harder to remove present management. Moreover, Article IV(b)(7) of our articles of incorporation requires the affirmative vote of at least 66-2/3% of the holders of preferred stock, voting separately as a class, to (i) create any class of stock ranking prior to the preferred stock as to dividends or upon liquidation or increase the authorized number of shares of any such class of stock; (ii) alter or change any provision of the articles of incorporation that adversely affects the relative rights and preferences of the preferred stock; or (iii) increase the authorized number of shares of preferred stock;
-
provisions found in Article VI of our articles of incorporation and Article II of our by-laws, dividing the Board of Directors into three classes which means that only approximately one-third of the directors are elected each year;
11
-
provisions found in Article VI of our articles of incorporation and Article II of our by-laws, allowing the removal of directors at a meeting of shareholders called expressly for that purpose. The removal of a director without cause requires the affirmative vote of the holders of at least 80% of the voting power of our then outstanding voting stock, voting together as a single class. These provisions narrowly define “cause” as the willful and continuous failure of a director to substantially perform his or her director’s duties (other than any failure resulting from incapacity due to physical or mental illness) or the willful engagement by a director in gross misconduct materially and demonstrably injurious to us. Additionally, Section 271B.8-080(4) of the KBCA also provides that a director may be removed by the shareholders only at a meeting called for that purpose. The meeting notice must state that removal is the purpose, or one of the purposes, of the meeting;
-
provisions found in Articles VIII and IX of our articles of incorporation, requiring the affirmative vote of shares representing not less than 80% of the votes entitled to be cast by the voting stock to alter, amend, repeal or adopt any provision inconsistent with or repeal the provisions regarding (i) this 80% voting requirement (Article IX), (ii) the Board size, vacancies and the terms of office and the removal of directors (Article VI) and (iii) the procedures for adopting, amending, altering or repealing the by-laws (Article VII); and requiring the affirmative vote of shares representing (1) not less than 80% of the votes entitled to be cast by the voting stock voting together as a single class and (2) not less than 66-2/3% of the votes entitled to be cast by the voting stock not beneficially owned, directly or indirectly, by any interested shareholder to amend, repeal, or adopt any provisions inconsistent with the provisions restricting certain business combinations with interested shareholders (Article VIII);
-
provisions found in Article VII of our articles of incorporation and Article IX of our by-laws, authorizing the Board of Directors (i) to adopt by-laws concerning the conduct of our affairs and the conduct of, and matters considered at, meetings of shareholders, including special meetings and (ii) to alter, amend or repeal the by-laws; and requiring the affirmative vote of the holders of at least 80% of the voting power of our then outstanding voting stock, voting as a single class for shareholders to alter, amend or repeal the by-laws;
-
Section 271B.11-030 of the KBCA requiring a majority vote of all votes entitled to be cast for a merger or share exchange transaction by each voting group entitled to vote separately on that transaction, unless the KBCA, articles of incorporation or the Board of Directors require a greater vote;
-
provisions set forth in Articles I and II of our by-laws, requiring that shareholders provide advance written notice when nominating directors or submitting other shareholder proposals;
-
a provision in Article I, Section 3 of our by-laws limiting the people who can call a special shareholders’ meeting to the chairman of the board, the president, a majority of the Board of Directors or, by written request to the secretary, holders of not less than one-third of all the shares entitled to vote at such meeting; and
-
Sections 271B.12-200 to 271B.12-230 of the KBCA governing “business combinations,” which generally (i) prohibit the company and its subsidiaries from entering into certain business combinations with an interested shareholder who beneficially owns 10% or more of the outstanding voting stock for a period of five years after the 10% or greater owner first reached that level of stock ownership, unless approved by the independent members of the Board of Directors prior to the date the 10% ownership threshold was reached, and (ii) thereafter restrict such business combinations, unless certain conditions are met. Notably, under the restrictions applicable after the initial five-year prohibition, such business combinations must either (i) be approved by a majority of continuing independent members of the Board of Directors, or (ii) be approved by the affirmative vote of at least 80% of the votes entitled to be cast by all outstanding shares of voting stock and two-thirds of the votes entitled to be cast by holders of voting stock other than those beneficially owned by the interested shareholder who is (or whose affiliate is) a party to the transaction, or by an affiliate or associate of such interested shareholder. Further, Article VIII of our articles of incorporation expressly
12
provides
that such Sections 271B.12-200 through 271B.12-230 of the KBCA shall apply to
any of our business combinations.
Article
VIII of our articles of incorporation also requires that certain business
combinations involving an interested shareholder (including, among others,
mergers and consolidations with an interested shareholder, or with any other
corporation, whether or not itself an interested shareholder, which is, or after
a merger or consolidation would be, an affiliate of an interested shareholder
who was an interested shareholder prior to the transaction, and sales, leases
and transfers of at least 5% of our total market value), must be recommended by
the Board of Directors, and approved by at least (1) 80% of the voting power of
the then outstanding voting stock and (2) two-thirds of the voting power of the
then outstanding voting stock other than voting stock owned by the interested
shareholder, its affiliates or associates. These supermajority voting provisions
do not apply (and thus, only a majority vote is required) if: (i) a majority of
the directors who are not affiliates or associates of the interested shareholder
and who were in office before the interested shareholder became an interested
shareholder (or were recommended or elected by a majority of such directors)
approve the transaction; or (ii) the shareholders in the business combination
receive a “fair price” based on market value and/or prices previously paid by
the interested shareholder, as measured on certain designated dates; there has
been no reduction in or failure to pay dividends after the interested
shareholder became an interested shareholder and prior to the business
combination; and after becoming an interested shareholder, such shareholder did
not receive the benefit of any loans or other financial assistance from
us.
LEGAL
MATTERS
The
legality of the common stock offered by this prospectus and any prospectus
supplement has been passed upon by Linda L. Foss, our Assistant General Counsel
and Corporate Secretary. Ms. Foss owns shares and holds options to
purchase additional shares of our common stock.
EXPERTS
Our consolidated financial statements
as of September 30, 2007 and 2008 and for each of the three fiscal years in the
period ended September 30, 2008 (including the schedule appearing therein) and
the effectiveness of our internal control over financial reporting as of
September 30, 2008, incorporated by reference in this prospectus, have been
audited by Ernst & Young LLP, an independent registered public accounting
firm, as stated in its reports incorporated by reference in this prospectus, and
are incorporated herein in reliance upon such reports given upon the authority
of said firm as experts in auditing and accounting.
13
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
Set forth
below is an estimate (except for the registration fee) of the fees and expenses
anticipated to be paid by the registrant with respect to the offer and sale of
the securities being registered hereby.
|
SEC
registration fee
.................................................................................................................................................................................................
|
$5,655
|
|
NYSE
listing fee
.......................................................................................................................................................................................................
|
11,500
|
|
Legal
fees and expenses
.........................................................................................................................................................................................
|
17,000
|
|
Accounting
fees and expenses
.............................................................................................................................................................................
|
25,000
|
|
Miscellaneous
..........................................................................................................................................................................................................
|
5,000
|
|
Total
|
$64,155
|
Item
15. Indemnification of Directors and Officers.
(a) Kentucky
General Corporation Law
Sections
271B.8-500 through 580 of the KBCA provide for indemnification of directors,
officers, employees and agents of Kentucky corporations, subject to certain
limitations. Although the below discussion is specific to directors,
Section 271B.8-560 permits a corporation to indemnify and advance expenses to
officers, employees and agents to the same extent as a director and gives an
officer who is not a director the same statutory right to mandatory
indemnification and to apply for court-ordered indemnification as afforded a
director. A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent, consistent with
public policy, that may be provided by its articles of incorporation, bylaws,
general or specific action by its board of directors, or contract.
Section
271B.8-520 of the KBCA provides that, unless limited by the articles of
incorporation, a corporation shall indemnify against reasonable expenses
incurred in connection with a proceeding any director who entirely prevails in
the defense of any proceeding to which the individual was a party because he or
she is or was a director of the corporation. The term “proceeding”
includes any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative and
whether formal or informal.
Section
271B.8-510 of the KBCA permits a corporation to indemnify an individual who is
made a party to a proceeding because the individual is or was a director, as
long as the individual (i) conducted himself or herself in good faith, (ii)
reasonably believed, in the case of conduct in his or her official capacity with
the corporation, that the conduct was in the best interests of the corporation
or, in all other cases, was at least not opposed to its best interests, and
(iii) in a criminal proceeding, had no reasonable cause to believe that the
conduct was unlawful. The termination of a proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere shall not be,
alone, determinative that the director did not meet the applicable standard of
care. Indemnification may be made against the obligation to pay a
judgment, settlement, penalty, fine or reasonable expenses (including counsel
fees) incurred with respect to a proceeding, except that if the proceeding was
by or in the right of the corporation, indemnification may be made only against
reasonable expenses.
Section
271B.8-510 of the KBCA specifically prohibits indemnification in (i) a
proceeding by or in the right of the corporation in which the director is
adjudged liable to the corporation or (ii) in connection with any other
proceeding charging improper personal benefit to the director, whether or not
involving action in the director’s official capacity, where the director is
adjudged liable on the basis of having received an improper personal
benefit.
Pursuant
to Section 271B.8-550, a determination that indemnification is permissible
because the individual met the applicable standard of conduct must first be made
before a director can be indemnified. This determination can be made
(i) by majority vote of a quorum of disinterested directors or, if a quorum
cannot be obtained, by majority vote of a committee made up solely of two or
more disinterested directors, (ii) by special legal counsel selected by the
majority vote of a quorum of disinterested directors or, if a quorum cannot be
obtained, by majority vote of a committee made up solely of two or more
disinterested directors; provided, however, if there are not two
II-1
disinterested
directors, then legal counsel can be selected by a majority vote of the full
board of directors, or (iii) by the shareholders, but shares owned by any
interested director cannot be voted.
Under
Section 271B.8-530, Ashland may advance expenses incurred by a director who is
party to a proceeding prior to the final disposition if (i) the director
furnishes the corporation a written affirmation of his or her good faith belief
that he or she has met the KBCA standards of director conduct, (ii) the director
furnishes the corporation with a written undertaking, executed personally or on
his or her behalf, to repay the advance if it is ultimately determined that he
or she did not meet the standard of conduct, and (iii) a determination is made
that the facts known to those making the determination would not preclude
indemnification under the KBCA’s director indemnification
provisions.
The
indemnification and advancement of expenses provided by, or granted pursuant to,
KBCA Sections 271B.8-500 – 271B.8-580 is not exclusive of any other rights to
which those seeking indemnification or advancement of expenses may otherwise be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise.
(b) Articles
of Incorporation and By-Laws of Ashland Inc.
In
general, Article X of Ashland’s articles of incorporation and Article IX,
Section 1 of Ashland’s by-laws provide for indemnification of any individual who
was or is a party to any threatened, pending or completed claim, action, suit or
proceeding by reason of his or her status as a director, officer or employee of
Ashland or of another entity at Ashland’s request (collectively referred to as a
“covered person”) against any reasonable costs and expenses (including
attorneys’ fees) and any liabilities (including judgments, fines, penalties or
reasonable settlements) reasonably paid by or imposed against the individual if
the individual:
-
has been successful on the merits or otherwise with respect to such claim, action, suit or proceeding; or
-
acted in good faith, in what the person reasonably believed to be the best interests of Ashland or such other entity, as the case may be, and in addition, in any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
Pursuant
to Article IX, Sections 2-4 of Ashland’s by-laws, indemnification based on good
faith and reasonable belief shall be made unless it is determined by any of the
following that the covered person has not met the standard of conduct required
for good faith indemnification (as described above):
-
the Board of Directors, acting by a quorum consisting of directors who were not parties to (or who were determined to have been successful with respect to) the claim, action, suit or proceeding;
-
a committee of the Board of Directors consisting of directors who were not parties to (or who were determined to have been successful with respect to) the claim, action, suit or proceeding;
-
any officer or group of officers who, by resolution adopted by the Board of Directors, has been given authority to make such determinations; or
-
either of the following selected by the Board of Directors if a disinterested committee of the Board cannot be obtained:
|
|
(i)
|
independent
legal counsel (who may be the regular counsel of Ashland) who has
delivered to Ashland a written determination;
or
|
|
|
(ii)
|
an
arbitrator or a panel of arbitrators (which panel may include directors,
officers, employees or agents of Ashland) who has delivered to Ashland a
written determination.
|
Article
IX, Section 5 of Ashland’s by-laws requires Ashland to advance expenses to a
director, officer or employee prior to the final disposition of the claim,
action, suit or proceeding, but the individual shall be obligated to repay the
advances if it is ultimately determined that the individual is not entitled to
indemnification. In addition, the by-laws provide that Ashland may,
as a condition to advance the expenses, require the director, officer or
II-2
employee
to sign a written instrument acknowledging such obligation to repay expenses if
it is ultimately determined that the person is not entitled to
indemnity. Ashland also may refuse to advance expenses or discontinue
advancing expenses if it is determined by Ashland, in its sole and exclusive
discretion, not to be in the best interest of Ashland.
Notwithstanding
the other provisions of Article IX, pursuant to Article IX, Section 6 of
Ashland’s by-laws, no person shall be indemnified in respect of any claim,
action, suit or proceeding, initiated by such person or such person’s
representative, or which involved the voluntary solicitation or intervention of
such person or such person’s representative. Article IX, Section 7 of
the by-laws provides that the rights of indemnification provided under Article
IX shall be in addition to any other rights to which the director, officer or
employee may otherwise be entitled. Further, in the event of any such
person’s death, then their indemnification rights extend to their heirs and
legal representatives.
(c) Contracts
Article X
of the articles of incorporation of Ashland provide that Ashland may take such
steps as may be deemed appropriate by the Board of Directors to provide
indemnification to any such person, including entering into indemnification
contracts between Ashland and individual directors, officers, employees or
agents which might provide rights to indemnification which are broader or
otherwise different than those authorized by the articles of
incorporation.
Ashland
has entered into indemnification agreements with each of its directors and
executive change in control agreements with certain of its executive officers
that require indemnification to the fullest extent permitted by law (as
described above), subject to certain exceptions and limitations.
Subject
to certain exclusions (as discussed below), the director indemnification
agreements require Ashland to provide indemnity to a director for reasonable
costs and expenses (including attorneys’ fees) and liabilities (including
judgments, fines, penalties and reasonable settlements) incurred by such
director in connection with any lawsuit or proceeding in which such director is,
was or is threatened to be involved as a party, witness or otherwise by reason
of the director’s position with Ashland. Such indemnification
agreements also provide that Ashland must advance the expenses of a director in
connection with a lawsuit or proceeding potentially covered by the provisions of
the indemnification agreement upon the written request of the
director. Such advancements are to be made with the understanding
that the director may be required to repay them if it is determined that he or
she is not entitled to indemnity in accordance with the indemnification
agreements.
Under the
indemnification agreements, indemnity is excluded if a court of competent
jurisdiction in a lawsuit or proceeding to which the director is a party finally
adjudicates that indemnity is prohibited by law, or to the extent that, prior to
a change in control, a majority of Ashland’s directors (or a duly designated
committee thereof) determines that the amount of expenses and/or settlements for
which indemnification is sought is unreasonable.
Such
indemnification agreements are in effect during the service as a director and
continue after termination of service as to lawsuits or proceedings arising as a
result of acts or omissions during the director’s service to
Ashland. A director must notify Ashland in writing within 20 days
after actual notice that he or she will be a party, witness or otherwise
involved in a lawsuit or proceeding.
(d)
Insurance
Section
271B.8-570 permits a corporation to purchase and maintain insurance on behalf of
directors, officers, employees or agents of the corporation, who is or was
serving in that capacity, against liability asserted against or incurred in that
capacity or arising from that status, whether or not the corporation would have
power to indemnify against the same liability.
Article X
of the articles of incorporation of Ashland provide that Ashland may take such
steps, as may be deemed appropriate by the Board of Directors and subject to the
occurrence of such terms and conditions as may be deemed appropriate by the
Board of Directors, to secure payment of such amounts as are required to effect
any indemnification permitted or authorized by Article X, including purchasing
and maintaining insurance, creating a
II-3
trust
fund, granting security interests or using other means (including, without
limitation, irrevocable letters of credit).
Ashland
has purchased insurance that insures (subject to certain terms and conditions,
exclusions and deductibles) Ashland against certain costs that it might be
required to pay by way of indemnification to directors or officers under its
articles of incorporation or by-laws, indemnification agreements or otherwise,
and protects individual directors and officers from certain losses for which
they might not be indemnified by Ashland. In addition, Ashland has
purchased insurance that provides liability coverage (subject to certain terms
and conditions, exclusion and deductibles) for amounts that Ashland or the
fiduciaries under their employee benefit plans, which may include its respective
directors, officers and employees, might be required to pay as a result of a
breach of fiduciary duty.
Item
16. Exhibits.
Exhibit
Number Description
of Document
|
4.1
|
Third
Restated Articles of Incorporation of Ashland effective May 17, 2006 and
amendment thereto effective February 3, 2009 (filed as Exhibit 3.1 to
Ashland’s Form 10-Q for the quarter ended December 31, 2008, and
incorporated herein by reference)
|
|
4.2
|
By-laws
of Ashland, effective as of June 30, 2005 (filed as Exhibit 3(ii) to
Ashland’s Form 10-Q for the quarter ended June 30, 2005, and incorporated
herein by reference)
|
|
5
|
Opinion
of Linda L. Foss as to legality of securities being
registered
|
|
23.1
|
Consent
of Ernst & Young LLP
|
|
23.2
|
Consent
of Linda L. Foss (included in Exhibit 5)
|
|
24
|
Powers
of Attorney
|
Item 17. Undertakings.
(a) The
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. 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 Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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;
|
|
Provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
II-4
(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.
(4)
That, for the purpose of determining liability under the Securities Act to any
purchaser:
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and | |
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
|
(5)
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 of 1933, each filing of the 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
II-5
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 in Item 15 or otherwise, the 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 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 of 1933 and will be governed by the final adjudication of such
issue.
II-6
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-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Covington, Commonwealth of Kentucky, on November 3, 2009.
| ASHLAND INC. | |||
|
|
By:
|
/s/ Lamar M. Chambers | |
| Lamar M. Chambers | |||
| Senior Vice President and Chief | |||
| Financial Officer | |||
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 dates
indicated.
| Name | Capacity | Date | ||
|
*
|
Chairman,
Chief Executive Officer and Director
|
November 3, 2009 | ||
| James J. O'Brien | ||||
| /s/ Lamar M. Chambers | Senior Vice
President and Chief Financial Officer |
November 3, 2009 | ||
| Lamar M. Chambers | ||||
| * | Vice President and Controller | November 3, 2009 | ||
| J. William Heitman | ||||
| * | Director | November 3, 2009 | ||
| Roger W. Hale | ||||
| * | Director | November 3, 2009 | ||
| Bernadine P. Healy | ||||
| * | Director | November 3, 2009 | ||
| Kathleen Ligocki | ||||
| * | Director | November 3, 2009 | ||
| Vado O. Manager | ||||
| * | Director | November 3, 2009 | ||
| Barry W. Perry | ||||
| * | Director | November 3, 2009 | ||
| Mark C. Rohr | ||||
| * | Director | November 3, 2009 | ||
| George A. Schaefer, Jr. | ||||
| * | Director | November 3, 2009 | ||
| Theodore M. Solso |
S-1
| * | Director | November 3, 2009 | ||
| John F. Turner | ||||
| * | Director | November 3, 2009 | ||
| Michael J. Ward |
|
*By:
|
/s/ David L. Hausrath | |
| Name: | David L. Hausrath | |
| Title: | Attorney-in-Fact | |
S-2
EXHIBIT
INDEX
|
Exhibit
Number
|
Description of
Document
|
|
4.1
|
Third
Restated Articles of Incorporation of Ashland effective May 17, 2006 and
amendment thereto effective February 3, 2009 (filed as Exhibit 3.1 to
Ashland’s Form 10-Q for the quarter ended December 31, 2008, and
incorporated herein by reference)
|
|
4.2
|
By-laws
of Ashland, effective as of June 30, 2005 (filed as Exhibit 3(ii) to
Ashland’s Form 10-Q for the quarter ended June 30, 2005, and incorporated
herein by reference)
|
|
5
|
Opinion
of Linda L. Foss as to legality of securities being
registered
|
|
23.1
|
Consent
of Ernst & Young LLP
|
|
23.2
|
Consent
of Linda L. Foss (included in Exhibit 5)
|
|
24
|
Powers
of Attorney
|