As filed with the Securities and Exchange Commission on August 9, 2005
Registration No. 333-105396
=============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------------------
ASHLAND INC.
(formerly New EXM Inc.)
(Exact name of Registrant as specified in its charter)
KENTUCKY 20-0865835
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
50 E. RIVERCENTER BOULEVARD
P.O. BOX 391
COVINGTON, KY 41012-0391
(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, General Counsel and Secretary
50 E. RiverCenter Boulevard
P.O. Box 391
Covington, KY 41012-0391
(859) 815-3333
(Name, Address, including Zip Code, and Telephone Number, including
Area Code, of Agent for Service)
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. [ ]
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, check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]
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. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
This Post-Effective Amendment No. 1 to Form S-3 shall become
effective in accordance with Section 8(c) of the Securities Act of 1933, as
amended, on such date as the Commission, acting pursuant to Section 8(c),
may determine.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1993 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 by the Registrant relates to (a)
the registration statement on Form S-3 (Registration No. 333-105396) of
Ashland Inc., a Kentucky corporation ("Old Ashland"), relating to 296,385
shares of Old Ashland common stock, par value $1.00 per share, and (b) the
following registration statements on Form S-3 of old Ashland relating to
the following shares of Old Ashland common stock, par value $1.00 per
share: Registration No. 333-78675 registering 68,925 shares; Registration
No. 333-36842 registering 96,600 shares; Registration No. 333-54762
registering 149,300 shares; and Registration No. 333-82830 registering
265,100 shares. The above-mentioned shares were previously registered for
issuance under the Ashland Inc. Stock Option Plan for Employees of Joint
Ventures, which has been assumed by the Registrant pursuant to the
Transactions (defined below).
Pursuant to Rule 414 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), the Registrant hereby adopts each of
Registration Statement Nos. 333-105396, 333-78675, 333-36842, 333-54762 and
333-82830 (the "Old Ashland Registration Statements") as its own for all
purposes of the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and, accordingly, affirms that the common
shares registered under the Old Ashland Registration Statements shall be
common shares of the Registrant.
Pursuant to Rule 429 under the Securities Act, the prospectus
included in this Registration Statement is a combined prospectus and
relates to the registered but unsold shares of common stock previously
registered under the Old Ashland Registration Statements as follows: 10,030
unsold shares registered under Registration Statement No. 333-78675; 13,164
unsold shares registered under Registration Statement No. 333-36842; 13,589
unsold shares registered under Registration Statement No. 333-54762; 24,332
unsold shares registered under Registration Statement No. 333-82830; and
73,871 unsold shares registered under Registration Statement No.
333-105396. Pursuant to Rule 429 under the Securities Act, this
post-effective amendment constitutes Post-Effective Amendment No. 1 to each
of these Registration Statements.
After giving effect to the filing of this Post-Effective Amendment
No. 1, the plan to which the Registration Statement relates will be the
Ashland Inc. Stock Option Plan for Employees of Joint Ventures, as assumed
by the Registrant upon the authority granted by resolutions of the board of
directors of the Registrant at a special meeting held on June 29, 2005.
After giving effect to the filing of this Post-Effective Amendment No. 1,
the Registrant will be the issuer of an aggregate of 876,310 shares of
common stock (the "Common Stock"), par value $0.01 per share, registered as
follows: 296,385 shares of Common Stock registered under this Registration
Statement No. 333-105396; 68,925 shares of Common Stock registered under
Registration Statement No. 333-78675; 96,600 shares of Common Stock
registered under Registration Statement No. 333-36842; 149,300 shares of
Common Stock registered under Registration Statement No. 333-54762; and
265,100 shares of Common Stock registered under Registration Statement No.
333-82830, and Old Ashland will not be a registrant under such registration
statements.
Old Ashland and Marathon Oil Corporation, a Delaware corporation
("Marathon"), entered into an agreement under which Old Ashland has
transferred its interest in Marathon Ashland Petroleum LLC ("MAP"), its
maleic anhydride business and 60 Valvoline Instant Oil Change Centers in
Michigan and northwest Ohio to a wholly owned subsidiary of Marathon (the
"Transactions"). The Transactions were consummated on June 30, 2005. As a
result of the Transactions, among other things, shareholders of Ashland are
entitled to receive (1) shares of Marathon common stock with a total value
of $915 million in exchange for the shares of Old Ashland common stock they
owned as of June 30, 2005, and (2) new shares of common stock of the
Registrant as successor corporation to Old Ashland. As part of the
Transactions, Old Ashland has merged with and into one of its subsidiaries.
As a result of the Transactions, the existing businesses of Old Ashland
other than those transferred to Marathon's subsidiary are owned by the
Registrant, the successor to Old Ashland through a series of mergers, and
the Registrant is a publicly-traded company owned by the Old Ashland
shareholders. The management and board of directors of Old Ashland
continued as the management and board of directors of the Registrant. Old
Ashland common stock was traded on the New York Stock Exchange and the
Chicago Stock Exchange under the symbol "ASH"; and, following the
completion of the Transactions, the Registrant's common stock is traded on
the New York Stock Exchange and the Chicago Stock Exchange under the same
symbol. As part of the Transactions, the name of the Registrant was changed
from "New EXM Inc." to "Ashland Inc."
The Transactions and related matters are more fully described in
the proxy statement/prospectus of the Registrant, constituting part of the
Registrant's registration statement on Form S-4, as amended (Registration
No. 333-119689-01).
(LEGEND INFORMATION)
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission (the "Commission") is effective.
This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
SUBJECT TO COMPLETION, DATED AUGUST ___, 2005
PROSPECTUS
ASHLAND INC.
50 E. RIVERCENTER BOULEVARD
P.O. BOX 391
COVINGTON, KENTUCKY 41011
(859) 815-3333
876,310 SHARES
COMMON STOCK
Ashland Inc. ("Old Ashland") and Marathon Oil Corporation
("Marathon") entered into an agreement, as amended (the "master
agreement"), under which Old Ashland has transferred its interest in
Marathon Old Ashland Petroleum LLC, or "MAP", its maleic anhydride business
and 60 Valvoline Instant Oil Change Centers in Michigan and northwest Ohio
to a wholly owned subsidiary of Marathon (which we refer to in this
document as the "transactions"). As a result of the transactions, among
other things, shareholders of Old Ashland have become entitled to receive
(1) shares of Marathon common stock with a total value of $915 million in
exchange for the shares of Old Ashland common stock they currently own and
(2) new shares of common stock of a successor corporation to Old Ashland
(we refer to such successor corporation in this document as "Ashland"). As
part of the transactions, Old Ashland has merged with and into one of its
subsidiaries. As of the completion of the transactions, the existing
businesses of Old Ashland other than those to be transferred to Marathon's
subsidiary are owned by Ashland the successor to Old Ashland through a
series of mergers, and Ashland is a publicly traded company owned by Old
Ashland shareholders. The management and board of directors of Old Ashland
continued as the management and board of directors of Ashland. Old Ashland
common stock was traded on the New York Stock Exchange and the Chicago
Stock Exchange under the symbol "ASH", and, following the completion of the
transactions, Ashland common stock is traded on the New York Stock Exchange
and the Chicago Stock Exchange under the same symbol. As part of the
transactions, the name of Ashland was changed to "Ashland Inc."
Of the aggregate 876,310 shares originally registered
under the registration statements to which this prospectus relates and set
forth above, approximately 134,986 shares remain available for use under
the Ashland Inc. Stock Option Plan for Employees of Joint Ventures. This
prospectus relates to the 134,986 shares of our common stock, $0.01 par
value per share, that we will issue upon exercise of the outstanding
nonqualified stock options that Old Ashland granted to selected employees
and officers of MAP. Pursuant to Rule 414 promulgated under the Securities
Act of 1933, as amended (the "Act"), we are the successor issuer to Old
Ashland in connection with the registration statements Old Ashland filed
relating to the stock option plan described herein. We have adopted the
registration statements as our own for all purposes of the Securities Act
of 1933, as amended (the "Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
Our common stock is listed on the New York Stock Exchange
and the Chicago Stock Exchange under the symbol "ASH". On August 8, 2005,
the last reported sale price of our common stock as reported by the New
York Stock Exchange was $61.07 per share.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS THAT ARE
DESCRIBED IN THE "RISK FACTORS" SECTION BEGINNING ON PAGE 3 OF THIS
PROSPECTUS.
You should read this prospectus and any supplement
carefully before you invest.
EXERCISE PRICE PROCEEDS TO ASHLAND
Per share of common stock issuable $39.58 $39.58
upon exercise of options granted on
September 17, 1998
Subtotal for September 17, 1998 grant $396,987.40 $396,987.40
Per share of common stock issuable $30.20 $30.20
upon exercise of options granted on
September 16, 1999
Subtotal for September 16, 1999 grant $397,552.80 $397,552.80
Per share of common stock issuable $27.26 $27.26
upon exercise of options granted on
September 21, 2000
Subtotal for September 21, 2000 grant $370,436.14 $370,436.14
Per share of common stock issuable $30.00 $30.00
upon exercise of options granted on
September 20, 2001
Subtotal for September 20, 2001 grant $729,960.00 $729,960.00
Per share of common stock issuable $23.20 $23.20
upon exercise of options granted on
September 19, 2002
Subtotal for September 19, 2002 grant $1,713,807.20 $1,713,807.20
TOTAL $3,608,743.54 $3,608,743.54
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Neither the Securities and Exchange Commission nor any
state securities commission has approved or disapproved these securities or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
This prospectus is dated August ___, 2005
TABLE OF CONTENTS
Page
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Risk Factors 1
Ashland Inc. 5
Use of Proceeds 5
Where You Can Find More Information About Old Ashland 6
The Plan 8
Federal Income Tax Consequences 12
Plan of Distribution 13
Legal Matters 13
(i)
RISK FACTORS
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS.
This prospectus contains forward-looking statements.
These statements relate to our future financial performance. In some cases,
you can identify forward-looking statements by terminology such as "may,"
"will," "should," "expects," "plans," "anticipates," "believes,"
"estimates," "predicts," "potential," "continue" or the negative of these
terms or other comparable terminology. These statements are only
predictions. Actual events or results may differ materially. In evaluating
these statements, you should specifically consider various factors,
including the risks outlined in these risk factors, any of which may cause
our actual results to differ materially from any forward-looking
statements.
RISKS RELATED TO ASHLAND AND ITS BUSINESS
ASHLAND WILL NOT HAVE ACCESS TO THE CASH FLOW FROM THE BUSINESSES
TRANSFERRED TO MARATHON, WHICH COULD ADVERSELY IMPACT ASHLAND'S REVENUES
AND OPERATING RESULTS.
The interest in MAP, the maleic anhydride business and
the 60 VIOC centers have generated funds from operations that have been
used in the businesses that will be operated by Ashland and for Ashland's
general corporate purposes. In each of the last three full fiscal years,
distributions from MAP have represented a majority of Old Ashland's
operating cash flows. Since the closing of the transactions, Ashland no
longer has access to the cash flow from the interest in MAP, the maleic
anhydride business or the 60 VIOC centers, which could adversely impact
Ashland's revenues and operating results.
ASHLAND IS RESPONSIBLE FOR, AND HAS FINANCIAL EXPOSURE TO, OLD ASHLAND'S
LIABILITIES FROM CLAIMS ALLEGING PERSONAL INJURY CAUSED BY EXPOSURE TO
ASBESTOS, WHICH WOULD REDUCE ASHLAND'S CASH FLOWS AND PROFITABILITY AND
COULD IMPAIR ITS FINANCIAL CONDITION.
Ashland is subject to liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims result
primarily from indemnification obligations undertaken in 1990 in connection
with the sale of Riley Stoker Corporation ("Riley"), a former subsidiary of
Old Ashland. Although Riley was neither a producer nor a manufacturer of
asbestos, its industrial boilers contained some asbestos-containing
components provided by other companies. As a result of the transactions,
Ashland is responsible for, and has financial exposure to, these
liabilities, which could reduce Ashland's cash flows and profitability and
impair its financial condition. For a description of the claims alleging
personal injury caused by exposure to asbestos, which number approximates
185,000, and the associated reserves and available insurance, see "Note G.
Litigation, Claims and Contingencies" to Ashland's condensed consolidated
financial statements contained in its quarterly report on Form 10-Q for the
fiscal quarter ended June 30, 2005, which is incorporated by reference in
this prospectus.
ASHLAND IS RESPONSIBLE FOR, AND HAS FINANCIAL EXPOSURE TO, OLD ASHLAND'S
OTHER LIABILITIES, WHICH WOULD REDUCE ASHLAND'S CASH FLOWS AND
PROFITABILITY AND COULD IMPAIR ITS FINANCIAL CONDITION.
As a result of the transactions, Ashland is responsible
for, and has financial exposure to, all of the asbestos-related
liabilities, substantially all of the environmental liabilities (other than
certain liabilities relating to MAP) and other liabilities of Old Ashland
and its subsidiaries other than liabilities incurred by ATB Holdings in
connection with the transactions.
Additionally, claimants might seek to hold Marathon
liable for obligations of Ashland. Ashland has agreed to indemnify Marathon
for liabilities and costs that Marathon may incur relating to Ashland's
liabilities (other than certain liabilities relating to MAP). See the
section entitled "The Master Agreement--Indemnification" in our proxy
statement/prospectus, constituting part of our registration statement on
Form S-4, as amended (Registration No. 333-119689-01), relating to the
transactions, which is incorporated herein by reference.
ASHLAND HAS LIMITED USE OF THE PROCEEDS FROM THE PARTIAL REDEMPTION AND THE
CAPITAL CONTRIBUTION RECEIVED IN THE TRANSACTIONS TO PAY DIVIDENDS OR OTHER
DISTRIBUTIONS OR COMPLETE SHARE REPURCHASES WHICH COULD HAVE AN ADVERSE
IMPACT ON ASHLAND'S STOCK PRICE.
1
From June 30, 2005, the date of the closing of the
transactions, through the sixth anniversary of the closing, Ashland has
agreed not to pay any dividend or other distribution or repurchase shares
of its common stock using proceeds received from the transactions without
the consent of Marathon if, at the time of the declaration or payment,
Ashland is or would be (after giving effect to the payment) insolvent under
any applicable fraudulent transfer or conveyance law as determined in good
faith by Ashland's board of directors in accordance with its fiduciary
duties under applicable law. In addition, any share repurchases must comply
with Internal Revenue Service Revenue Procedure 96-30, which generally
requires that (i) the shares be repurchased in the open market and (ii)
Ashland not intend to repurchase more than 20% of its outstanding shares.
Ashland's limited use of the proceeds from the partial redemption and the
capital contribution to pay dividends or other distributions or complete
share repurchases could have an adverse impact on Ashland's stock price.
ASHLAND MAY NOT BE ABLE TO SUCCESSFULLY USE THE PROCEEDS OF THE PARTIAL
REDEMPTION RECEIVED IN THE TRANSACTIONS IN A VALUE-GENERATING MANNER WHICH
COULD REDUCE ITS FUTURE RATE OF GROWTH, PROFITABILITY AND OPERATING
RESULTS.
Ashland may use the cash proceeds from the partial
redemption for general corporate purposes, which may include the funding of
pension obligations and expanding its business through both internal growth
and future business acquisitions. Ashland may not be able to successfully
identify uses for those proceeds that will generate value for Ashland and
its shareholders which could reduce Ashland's future rate of growth. In
addition, in connection with possible future business acquisitions, the
process of integrating acquired operations into Ashland's existing
operations may result in unforeseen operating difficulties and may require
significant financial resources that would otherwise be available for the
ongoing development or expansion of its business which could reduce
Ashland's profitability and operating results.
ASHLAND HAS INCURRED AND WILL INCUR SUBSTANTIAL OPERATING COSTS AND CAPITAL
EXPENDITURES AS A RESULT OF ENVIRONMENTAL AND HEALTH AND SAFETY LIABILITIES
AND REQUIREMENTS, PARTICULARLY RELATING TO ITS CHEMICAL BUSINESSES, WHICH
COULD REDUCE ASHLAND'S RESULTS OF OPERATIONS AND PROFITABILITY.
Ashland is subject to various U.S. and foreign laws and
regulations relating to environmental protection and worker health and
safety. These laws and regulations regulate discharges of pollutants into
the air and water, the management and disposal of hazardous substances and
the cleanup of contaminated properties. The costs of complying with these
laws and regulations can be substantial and may increase as applicable
requirements become more stringent and new rules are implemented. If
Ashland violates the requirements of these laws and regulations, it may be
forced to pay substantial fines, to complete additional costly projects, or
to modify or curtail its operations to limit contaminant emissions.
Ashland is responsible for, and has financial exposure
to, substantially all of the environmental liabilities (other than certain
liabilities relating to MAP) and other liabilities of Ashland and its
subsidiaries. Ashland investigated and remediated a number of its current
and former properties. At June 30, 2005, such locations included 102 waste
treatment or disposal sites where Ashland was identified as a potentially
responsible party under Superfund or similar state laws, approximately 130
current and former operating facilities (including certain facilities
conveyed to MAP) and about 1,220 service station properties. Ashland's
environmental remediation costs were approximately $39 million for the nine
months ended June 30, 2005. Ashland's reserves for environmental
remediation amounted to $177 million at June 30, 2005 and reflected its
estimates of the most likely costs that will be incurred over an extended
period to remediate identified conditions for which the costs are
reasonably estimable, without regard to any third-party recoveries.
Engineering studies, probability techniques, historical experience and
other factors are used to identify and evaluate remediation alternatives
and their related costs in determining the estimated reserves for
environmental remediation. Environmental remediation reserves are subject
to numerous inherent uncertainties that affect Ashland's ability to
estimate its share of the costs. Such uncertainties involve the nature and
extent of contamination at each site, the extent of required cleanup
efforts under existing environmental regulations, widely varying costs of
alternate cleanup methods, changes in environmental regulations, the
potential effect of continuing improvements in remediation technology, and
the number and financial strength of other potentially responsible parties
at multiparty sites. Ashland regularly adjusts its reserves as remediation
continues.
2
SEVERAL OF ASHLAND'S BUSINESSES ARE CYCLICAL IN NATURE, AND ECONOMIC
DOWNTURNS OR DECLINES IN DEMANDS FOR CERTAIN DURABLE GOODS MAY REDUCE ITS
PROFITABILITY AND LIMIT ITS ABILITY TO GENERATE REVENUES.
The profitability of Ashland's businesses is susceptible
to downturns in the economy, particularly downturns in the segments of the
U.S. economy related to the purchase and sale of durable goods, including
the housing, construction, automotive, marine and semiconductor industries.
Both overall demand for Ashland's products and services and its
profitability may decline as a direct result of an economic recession,
inflation, changes in the prices of hydrocarbons and other raw materials,
consumer confidence, interest rates or governmental fiscal policies. In
addition, Ashland may experience significant changes in its profitability
as a result of variations in sales, changes in product mix or pricing
competition.
ADVERSE CHANGES IN PREVAILING CLIMATE OR WEATHER MAY NEGATIVELY AFFECT THE
PERFORMANCE OF SOME OF ASHLAND'S OPERATIONS, WHICH COULD REDUCE ASHLAND'S
RESULTS OF OPERATIONS AND PROFITABILITY.
Extreme variations from normal climatic conditions could
have a significant effect on the operating results of APAC's construction
operations. In particular, unfavorable weather conditions could delay the
completion of construction projects, and may require the use of additional
resources. In addition, certain of the products sold by Valvoline are
seasonal in nature, and thus demand for those products may decline due to
significant changes in prevailing climate and weather conditions such as
floods, frozen rivers and hurricanes.
ASHLAND'S FINANCING COSTS MAY BE HIGHER THAN OLD ASHLAND'S FINANCING COSTS
WHICH COULD ADVERSELY IMPACT ASHLAND'S ABILITY TO OBTAIN FUTURE FINANCING
ON ACCEPTABLE TERMS AND ASHLAND'S RESULTS OF OPERATIONS AND CASH FLOWS.
Ashland will have to raise financing with the support of
a reduced pool of less diversified assets, and Ashland may not be able to
secure adequate debt or equity financing on terms that would have been
available to Old Ashland. Therefore, the cost to Ashland of financing
without the 38% interest in MAP, the maleic anhydride business and the 60
VIOC centers, could be higher than the cost of financing with these
businesses as part of the company which could adversely impact Ashland's
ability to obtain future financing on acceptable terms and Ashland's
results of operations and cash flows.
The credit ratings of Ashland may be different from the
ratings of Old Ashland. Differences in credit ratings affect the interest
rate charged on financings, as well as the amounts of indebtedness, types
of financing structures and debt markets that may be available to Ashland
following the transactions. Ashland may not be able to raise the capital it
requires on favorable terms following the closing of the transactions.
Therefore, the cost to Ashland of financing without the 38% interest in
MAP, the maleic anhydride business and the 60 VIOC centers, could be higher
than the cost of financing with these businesses as part of the company,
which could adversely impact Ashland's ability to obtain future financing
on acceptable terms and Ashland's results of operations and cash flows.
ASHLAND MAY ISSUE PREFERRED STOCK WHOSE TERMS COULD ADVERSELY AFFECT THE
VOTING POWER OR VALUE OF ITS COMMON STOCK.
Ashland's articles of incorporation authorizes it to issue, without the
approval of its shareholders, one or more classes or series of preferred
stock having such preferences, powers and relative, participating, optional
and other rights, including preferences over its common stock respecting
dividends and distributions, as its board of directors generally may
determine. The terms of one or more classes or series of preferred stock
could adversely impact the voting power or value of Ashland's common stock.
For example, Ashland could grant holders of preferred stock the right to
elect some number of its directors in all events or on the happening of
specified events or the right to veto specified transactions. Similarly,
the repurchase or redemption rights or liquidation preferences Ashland
could assign to holders of preferred stock could affect the residual value
of its common stock. See the sections entitled "Description of New Ashland
Capital Stock--Preferred Stock" and "Comparison of the Rights of Holders of
Common Stock" in our proxy statement/prospectus, constituting part of our
registration statement on Form S-4, as amended (Registration No.
333-119689-01), relating to the transactions, which is incorporated herein
by reference.
3
PROVISIONS OF ASHLAND'S ARTICLES OF INCORPORATION AND BY-LAWS, ITS RIGHTS
AGREEMENT AND KENTUCKY LAW COULD DETER TAKEOVER ATTEMPTS THAT SOME
SHAREHOLDERS MAY CONSIDER DESIRABLE, WHICH COULD ADVERSELY AFFECT ASHLAND'S
STOCK PRICE.
Provisions of Ashland's articles of incorporation and
by-laws make acquiring control of Ashland without the support of its board
of directors difficult for a third party, even if the change of control
would be beneficial to Ashland shareholders. Ashland's articles of
incorporation and by-laws contain:
o provisions relating to the classification, nomination and removal
of its directors;
o provisions limiting the right of shareholders to call special
meetings of its board of directors and shareholders;
o provisions regulating the ability of its shareholders to bring
matters for action at annual meetings of its shareholders; and
o the authorization given to its board of directors to issue and
set the terms of preferred stock.
In addition, Ashland has succeeded to Old Ashland's shareholder rights
agreement, which would cause extreme dilution to any person or group who
attempts to acquire a significant interest in Ashland without advance
approval of its board of directors. Ashland's articles of incorporation and
the laws of Kentucky impose some restrictions on mergers and other business
combinations between Old Ashland and any beneficial owner of 10% or more of
the voting power of its outstanding common stock. The existence of these
provisions may deprive you of any opportunity to sell your shares at a
premium over the prevailing market price for Ashland common stock. The
potential inability of Ashland shareholders to obtain a control premium
could adversely affect the market price for its common stock. See the
sections entitled "Description of Common Stock of Ashland" and "Comparison
of the Rights of Holders of Common Stock" in our proxy
statement/prospectus, constituting part of our registration statement on
Form S-4, as amended (Registration No. 333-119689-01), relating to the
transactions, which is incorporated herein by reference, for a description
of these and other provisions.
4
ASHLAND INC.
Ashland's businesses are grouped into five industry
segments: APAC (as defined below); Ashland Distribution; Ashland Specialty
Chemical; Valvoline; and Refining and Marketing. Financial information
about each of these segments for the three fiscal years ended September 30,
2004 is set forth on pages F-26 and F-27 of Ashland's annual report on Form
10-K, as amended, for the fiscal year ended September 30, 2004, which has
been incorporated by reference in this proxy statement/prospectus.
Ashland Paving And Construction, Inc. and its
subsidiaries ("APAC") perform asphalt and concrete contract construction
work, including highway paving and repair, excavation and grading and
bridge construction, and produce asphaltic mix and ready-mix concrete,
crushed stone and other aggregate in the southern and mid-continent regions
of the United States.
Ashland Distribution distributes chemicals, plastics and
resins in North America and plastics in Europe. Ashland Distribution also
provides environmental services.
Ashland Specialty Chemical is focused on two primary
businesses: thermoset resins and water technologies. It is a worldwide
supplier of specialty chemicals serving industries including: building and
construction; commercial and institutional water treatment; graphic arts
and printing; industrial water treatment; marine; metal casting; packaging
and converting; pulp and paper; recreational marine; and transportation.
Ashland's maleic anhydride business contributed to ATB
Holdings (and ultimately to Marathon) in the transactions was a part of
Ashland's Specialty Chemicals segment. The maleic anhydride business
produced maleic anhydride at its plant in Neal, West Virginia. Maleic
anhydride is used in the production of unsaturated polyester resins, lube
oil additives, co-polymers, alkyd resins, fumaric and malic acids and
agricultural chemicals. The production capacity of the maleic anhydride
business was 104 million pounds per year prior to the transactions.
Valvoline is a producer and marketer of premium packaged
motor oil and automotive chemicals, including appearance products,
antifreeze, filters and automotive fragrances. In addition, Valvoline is
engaged in the "fast oil change" business through outlets operating under
the Valvoline Instant Oil Change(R) name. As of June 30, 2005, there were
360 company-owned and 400 franchised VIOC centers operating in 40 states.
The 60 Valvoline Instant Oil Change centers in Michigan
and northwest Ohio contributed to ATB Holdings (and ultimately to Marathon)
in the transactions provided services to the passenger car and light truck
motor oil market.
Ashland's Refining and Marketing segment consisted
primarily of its 38% interest in MAP, which was transferred pursuant to the
transactions.
Ashland is a Kentucky corporation, organized in March
2004, with its principal executive offices located at 50 E. RiverCenter
Boulevard, Covington, Kentucky 41011 (Mailing Address: 50 E. RiverCenter
Boulevard, P.O. Box 391, Covington, Kentucky 41012-0391) (Telephone: (859)
815-3333). Ashland is the successor corporation to Old Ashland, which was
organized on October 22, 1936.
USE OF PROCEEDS
Ashland will use the net proceeds it receives from the
sale, in connection with the exercise of the options described in this
prospectus, of its common stock to which this prospectus relates for
general corporate purposes. General corporate purposes may include
additions to working capital, capital expenditures, repayment of debt,
stock redemption or the financing of possible acquisitions.
5
WHERE YOU CAN FIND MORE INFORMATION ABOUT ASHLAND
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any document we
file at the Commission's public reference rooms at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the Commission at 800-SEC-0330 for
further information on the public reference rooms. The Commission also
maintains a website (http://www.sec.gov) that contains reports, proxy and
informative statements and other information regarding registrants, such as
Ashland, that file electronically with the Commission.
The SEC allows us to "incorporate by reference" into this
prospectus the information we file with it, which means that we can
disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be a part of
this prospectus, and later information filed with the SEC will update and
supersede this information. We incorporate by reference the documents
listed below and any filings made with the SEC under Section 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934 after the date of the
initial registration statement relating to this prospectus and prior to
effectiveness of that registration statement, and any future such filings
until our offering is completed:
1. Old Ashland's Annual Report on Form 10-K, as amended, for the
fiscal year ended September 30, 2004;
2. Old Ashland's quarterly reports on Form 10-Q for the fiscal
quarters ended December 31, 2004 and March 31, 2005;
3. Old Ashland's current reports on Form 8-K, as filed on October 29,
2004, November 4, 2004, November 5, 2004, December 14, 2004, December 20,
2004 (providing an update on the status of the transaction), December 29,
2004, January 25, 2005 (providing an update on the status of the
transaction), January 27, 2005, January 31, 2005, March 10, 2005, March 24,
2005, April 13, 2005, April 28, 2005, May 2, 2005, June 1, 2005, June 16,
2005, June 21, 2005 (not including Item 7.01), June 28, 2005 (announcing
reference yields and total purchase prices in respect of each of its
notes), June 29, 2005 and June 30, 2005;
4. Ashland's current reports on Form 8-K, as filed on June 30, 2005,
July 6, 2005, July 15, 2005, July 21, 2005, July 25, 2005, July 28, 2005
and August 1, 2005;
5. Ashland's quarterly report on Form 10-Q for the fiscal quarter
ended June 30, 2005; and
6. the description of Ashland's common stock (and the related
preferred stock purchase rights) set forth under the headings "Description
of New Ashland Capital Stock" and "Comparison of Rights of Holders of
Common Stock" in Ashland's registration statement on Form 8-A filed under
the Exchange Act on June 15, 2005 (File No. 001-32532), including any
amendment or report filed for the purpose of updating such description.
In addition, all documents hereafter filed with the Commission by
us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of
such documents.
Any statement contained in this Registration Statement, in an
amendment hereto, or in a document incorporated by reference herein, shall
be deemed modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein, in any
subsequently filed supplement to this Registration Statement, or any
document that is also 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.
6
You may request a copy of these filings, at no cost, by writing to or
telephoning us at the following address (or by visiting our website at
www.ashland.com):
Office of the Secretary
Ashland Inc.
50 E. RiverCenter Boulevard
P.O. Box 391
Covington, KY 41012-0391
859-815-3333
We have authorized no one to provide you with information different
from the information incorporated by reference or provided in this
prospectus or the prospectus supplement. We are not making an offer of
these securities in any state where the offer is not permitted.
7
THE PLAN
General Plan Information
Marathon Ashland Petroleum LLC, or MAP, was a joint
venture between Marathon Oil Company, a subsidiary of Marathon Oil
Corporation, and Old Ashland our predecessor corporation. Old Ashland's
management determined that it would be in Old Ashland's best interest that
certain MAP officers and employees have an ownership interest in Old
Ashland. On each of September 17, 1998, September 16, 1999, September 21,
2000, September 20, 2001 and September 19, 2002, Old Ashland's board of
directors approved the grant of a number of options to purchase Old Ashland
common stock to certain officers and employees of MAP. As a result of the
transactions, and as further described below under "Adjustments", these
options are now options to purchase Ashland common stock. Throughout this
prospectus, we will refer to the stock options as the "MAP stock options,"
the MAP employees that were granted MAP stock options as the "recipients"
and the company's Personnel and Compensation Committee as the "Committee."
Old Ashland granted the MAP stock options under the terms and conditions of
the notices of grant and the Ashland Inc. Stock Option Plan for Employees
of Joint Ventures, a plan, approved by Old Ashland's board of directors on
September 17, 1998, specifically designated to grant options to employees
of joint ventures in which Ashland has an interest. The MAP stock options
supplemented stock options and/or restricted stock granted to the
recipients by Marathon Oil Company in amounts recommended by the MAP
Executive Committee. In connection with the transactions, the plan was
assumed by Ashland upon the authority granted by resolutions of Ashland's
board of directors at a special meeting held on June 29, 2005.
This section contains a summary of the material terms and
provisions of the Ashland Inc. Stock Option Plan for Employees of Joint
Ventures, including terms relating to the transactions, and is not
complete. You should refer to the documents relating to the plan which are
incorporated by reference as exhibits to the registration statement of
which this prospectus is a part. If necessary, we will in the future
provide supplemental material to update the available information with
respect to the plan, the MAP stock options and the underlying shares of our
common stock to holders of MAP stock options. You should also refer to the
master agreement attached as Annex A to our proxy statement/prospectus,
constituting part of our registration statement on Form S-4, as amended
(Registration No. 333-119689-01) which is incorporated herein by reference.
The plan is not a qualified deferred compensation plan
under Section 401(a) of the Internal Revenue Code of 1986, as amended, and
is exempt from the provisions of the Employee Retirement Income Security
Act of 1974, as amended.
Participants under the plan may obtain additional
information regarding the plan and its administration from the Office of
the Secretary, Ashland Inc., 50 E. RiverCenter Boulevard, P.O. Box 391,
Covington, KY 41012-0391. The Secretary's Office may also be reached by
phone at 859-815-3333.
Purpose of the Plan
The principal purpose of the plan is to promote our
interests and those of Ashland's shareholders by attracting and retaining
management personnel whose training, experience and abilities contribute to
the success of joint ventures in which we have an interest and which our
board of directors designates as being governed by the plan. To achieve
this purpose, Ashland granted MAP stock options to selected MAP officers
and employees. A recipient of the MAP stock options has the right to
purchase Ashland common stock at a price and on terms to be specified by
the Committee or determined in some other manner under the plan.
Administration
The Committee administers the plan. Mannie L. Jackson,
Patrick F. Noonan, Kathleen Ligocki, T.M. Solso and Michael J. Ward
presently serve on the Committee.
-8-
Eligibility and Grant of MAP Stock Options
The MAP Executive Committee recommended to the Committee
certain regular, full-time or part-time employees of MAP to participate in
the plan. The Committee selected the MAP employees to receive an award of
MAP stock options under the plan. The MAP stock options to which this
prospectus relates were granted to the recipients on each of September 17,
1998, September 16, 1999, September 21, 2000, September 20, 2001 and
September 19, 2002. Under the notices of each grant, none of the rights and
obligations of the recipients, including under the vesting provisions or
other terms of the notices of grant or the plan, will be affected by the
transfer of any of the recipients from MAP to Ashland or from MAP to
another unit of Marathon Oil Corporation. Under the notices of grant, by
accepting the award of MAP stock options, the recipients agreed to remain
at MAP for a period of at least one year from the date of the award,
although this did not in any way confer from Old Ashland to any recipient
any right to continue employment with MAP or affect any existing right of
MAP to terminate any recipient. Ashland similarly did not confer any such
right upon assuming the plan.
Annual Report to Optionees
Recipients received, on an annual basis, a report from
Old Ashland as to the amount and status of their MAP stock options.
Exercise Price
Under the plan, the exercise price for the underlying
Ashland common stock that will be issued for each MAP stock option was
fixed by the Committee at the time the option was granted. The Committee
determined that exercise price for the options to be the fair market value
per share of Ashland's common stock on the date of grant. The Committee
further determined fair market value to be the closing price per share of
Old Ashland's common stock on the New York Stock Exchange ("NYSE")
composite tape on the date of grant. The price per share of Old Ashland's
common stock on the NYSE composite tape on each of the dates of grant were
as indicated in the chart below. As a result of the transactions,
adjustments will be made to the exercise price pursuant to the terms of the
plan as discussed below under "Adjustments", so that the new exercise price
shall be as indicated in the chart below.
PRICE PER SHARE OF OLD ASHLAND
COMMON STOCK ON DATE OF GRANT ADJUSTED EXERCISE PRICE
(BASED ON NYSE COMPOSITE TAPE FOLLOWING THE TRANSACTION
September 17, 1998 $48.00 $39.58
September 16, 1999 $36.625 $30.20
September 21, 2000 $33.0625 $27.26
September 20, 2001 $36.38 $30.00
September 19, 2002 $28.13 $23.20
Acceptance of Awards
By accepting any award of MAP stock options under the
plan, each recipient was conclusively deemed to have indicated his or her
acceptance and ratification of and consent to any action that Ashland,
Ashland's board of directors or the Committee may have taken with respect
to the plan, including any amendment of the plan by the board of directors
or the Committee. The terms of this provision are also deemed to apply to
each personal representative or beneficiary claiming under or through the
recipient, as those individuals are defined under the plan.
Notice of Grant
Each MAP stock option is evidenced by a notice of grant
between the recipient and Old Ashland. The notice of grant contains those
terms and conditions that the Committee determines and that are consistent
with the plan.
9
Vesting
Unless the Committee determines otherwise, each MAP stock
option will provide that its recipient may not wholly or partially exercise
the option for a period of one year after the date of the option's grant.
In connection with the transactions, any outstanding stock options which
were granted in 2001 or 2002 but were not vested immediately prior to June
30, 2005 were subject to accelerated vesting on June 30, 2005. The options
granted on September 17, 1998, September 16, 1999 and September 21, 2000,
unless otherwise canceled or terminated, vested based on the following
schedule: 50% of the MAP stock options granted vested on the first
anniversary of the grant date, an additional 25% vested on the second
anniversary of the grant date and the remaining 25% vested on the third
anniversary of the grant date.
Exercise of MAP Stock Options and Payment
A stock option may be exercised by written notice to us.
The written notice must be consistent with the terms of the notice of grant
relating to the MAP stock option and must be accompanied by payment of the
full exercise price for the underlying shares of our common stock which the
holder of the MAP stock option chooses to exercise. The exercise price for
any shares purchased may be paid in cash, in shares of our common stock
previously owned by the holder, partly in cash and partly in our common
stock or in such other consideration as shall constitute lawful
consideration for the issuance of common stock (including, but not limited
to, a "cashless exercise"), as the Committee, in its sole discretion, may
determine. There are no restrictions on the resale of the Ashland common
stock acquired as a result of the exercise of a MAP stock option.
In order to assure compliance with the securities laws,
during any time that the registration statement of which this prospectus is
a part is not effective, the Committee may require evidence of a type and
degree it considers necessary to establish that the underlying shares of
common stock are being purchased for investment only and not with a view
to, or for sale in connection with, a distribution. As used in this
context, "distribution" is defined under the Securities Act. If this
prospectus is not then part of an effective registration statement, the
Committee may further require legends on the certificates representing the
underlying shares.
As a condition to the transfer of a certificate
representing those shares, the Committee may obtain those agreements or
undertakings that it considers necessary or advisable to assure compliance
with any provision of the plan or any law or regulation.
Each stock option granted on September 17, 1998,
September 16, 1999 or September 21, 2000 which were exercisable as of June
30, 2005, and each stock option granted on September 20, 2001 or September
19, 2002, including the ones subject to accelerated vesting described
above, which were not exercised prior to June 30, 2005, may be exercised
for a period of 90 days after the date of effectiveness of the
post-effective amendments to the registration statements to which this
prospectus relates.
Cancellation of MAP Stock Option
The Committee has the right in its sole discretion and
without the option holder's consent to cancel a MAP stock option granted
under the plan, whether vested or not, at any time. If the Committee does
so, it will cause Ashland to pay the recipient holding the canceled option
an amount determined by using the Black-Scholes or some other valuation
method generally accepted and used by nationally recognized executive
compensation consulting firms. The Committee will determine whether we make
the buyout payments under this provision in cash, in shares of our common
stock or partly in cash and partly in common stock. Buyout payments will be
made net of any applicable foreign, federal (including FICA), state or
local withholding taxes.
Transferability
Unless our board of directors or the Committee directs
otherwise, the rights and interest of a recipient may not wholly or
partially be assigned or transferred directly, by operation of law or in
some other manner, including but not limited to the following: execution,
levy, garnishment, attachment, pledge or bankruptcy. No recipient's rights
or interest under the plan will be assigned or transferred because of
10
any obligation or liability of that recipient. The sole exception to this
provision is that the recipient's rights and interest under the plan may
pass by will or the laws of descent and distribution in the event of the
recipient's death.
Reserve of Common Stock
Shares of our common stock to be issued upon the exercise
of MAP stock options will be from authorized but unissued shares. If any
MAP stock option or a part of a MAP stock option expires, terminates or is
canceled or surrendered for any reason without having been fully exercised,
the shares relating to the unexercised portion of the MAP stock option may
again be subject to the grant of MAP stock options under the plan.
Term of the Plan
The plan became effective on September 17, 1998, the date
of the plan's approval by Old Ashland's board of directors and was assumed
by Ashland on June 30, 2005, the closing date of the transactions, pursuant
to the authority granted by resolutions of the board of directors of
Ashland at a special meeting held on June 29, 2005. Following the
transactions, all of the MAP stock options will expire 90 days after the
effective date of the registration statement to which this prospectus
relates.
Termination of Employment
The plan provides that the Committee decides when and the
terms under which a recipient (or his beneficiaries or legal personal
representative, as the case may be, as those terms are defined in the plan)
who dies, becomes disabled or retires or leaves MAP employment may continue
to exercise vested MAP stock options. The Committee also decides the extent
to which unvested MAP stock options will vest for those recipients. Under
the notices of grant, in the event of a recipient's retirement from MAP or
death or disability while employed by MAP, Ashland or another unit of
Marathon Oil Corporation, the MAP stock option may be exercised for the
number of shares which its recipient could have acquired under the option
immediately prior to the retirement, death or disability.
The plan provides that if the employment of a recipient
terminates before the end of the one year vesting period for the options or
any other period determined by the Committee, then those options will
immediately terminate. Under the notices of grant, a recipient, after
terminating employment from MAP, Ashland or another unit of Marathon Oil
Corporation for a reason other than retirement, death or disability, may
exercise any MAP stock option until the earlier of 30 days after
termination or the expiration date of the option. That option may be
exercised for the number of shares which the recipient could have acquired
under the option immediately prior to termination.
Following the transactions, each of the MAP stock options
must be exercised prior to the expiration of the 90-day period beginning on
the effective date of the registration statement to which this prospectus
relates.
Adjustments
The kind of shares that we may issue under the plan and
the kind of shares underlying the exercise price for any outstanding MAP
stock options is and will be automatically adjusted to maintain the
proportionate interest of any recipient who received MAP stock options
before any of the following types of events: a stock split, stock dividend,
recapitalization, merger, consolidation, reorganization, combination,
exchange of shares, split-up, split-off, spin-off, liquidation or any
distribution to holders of our common stock other than cash dividends. Any
adjustment under this provision is conclusive and binding for all purposes
of the plan. As a result of the transactions, the following adjustments
shall be made: (a) the number of shares issuable upon exercise of a MAP
stock option shall be multiplied by a conversion factor of 1.2129 (and
rounded down to the nearest whole share) and (b) the exercise price of a
MAP stock option shall be divided by a conversion factor of 1.2129 (and
rounded up to the nearest whole cent).
11
Amendment
Our board of directors or the Committee may at any time
terminate, modify or amend the plan in those respects it deems advisable
and as permitted by law.
Type of Stock Option
The MAP stock options will be nonqualified stock options
and will not be entitled to tax treatment as incentive stock options as
defined in Section 422 of the Internal Revenue Code of 1986, as amended.
Listing
The shares of our common stock underlying the MAP stock
options have been listed on the New York Stock Exchange and the Chicago
Stock Exchange.
FEDERAL INCOME TAX CONSEQUENCES
The following brief description of the tax consequences
of awards under the plan is based on Federal tax laws currently in effect
and does not purport to be a complete description of such Federal tax
consequences.
If shares are issued to the original holder of a
nonqualified option that is granted and exercised in accordance with the
plan, then:
o no income will be recognized by the holder at the time of grant
of the option;
o upon exercise of the option the holder will recognize taxable
ordinary income in an amount equal to the excess of the fair
market value, at the time of exercise, of the shares acquired
over the option price;
o subject to the limitation described below, we will be entitled to
a deduction at the same time and in the same amount as the holder
has income under the preceding item; and
o upon a sale of the shares acquired, the holder will have
short-term or long-term capital gain or loss, as the case may be,
in an amount equal to the difference between the amount realized
on the sale and the tax basis of the shares sold.
Assuming that the payment of the option price is made
entirely in cash, the tax basis of the shares will be equal to their fair
market value on the date of exercise, but not less than the option price,
and their holding period will begin on the day after the tax basis of the
shares is determined in this manner.
If the optionee uses previously owned shares to exercise
an option in whole or in part, the transaction will not be considered to be
a taxable disposition of the previously owned shares. The holder's tax
basis and holding period of the previously owned shares will be carried
over to the equivalent number of shares received on exercise. The tax basis
of the additional shares received upon exercise will be the fair market
value of the shares on the date of exercise but not less than the amount of
cash used in payment, and the holding period for the additional shares will
begin on the day after the tax basis of the shares is determined in this
manner. In order to facilitate recordkeeping by optionees, when an option
is exercised with previously owned shares, we will deliver separate stock
certificates to the optionee representing the shares surrendered and the
additional shares to which the optionee is entitled as a result of the
exercise.
In addition to the Federal income tax consequences
described above, the acquisition, ownership or disposition of a MAP stock
option or shares acquired upon the exercise of a MAP stock option may have
tax consequences under various state or foreign laws that may be applicable
to certain option holders. Since these tax consequences, as well as the
Federal income tax consequences described above, may vary from holder to
holder depending upon the particular facts and circumstances involved, each
holder should consult his or her own tax advisor with respect to the
Federal income tax consequences of the grant or exercise of a MAP stock
option, and also with respect to any tax consequences under
12
applicable state or foreign law. Ashland will not withhold more than the
statutorily required amounts for federal, state and local taxes.
To ensure compliance with requirements imposed by the
Internal Revenue Service, we inform you that any tax advice contained in
the prospectus relating to the plan was not intended or written to be used,
and cannot be used, for the purpose of avoiding tax-related penalties under
the Internal Revenue Code.
PLAN OF DISTRIBUTION
Ashland will offer the underlying shares of its common
stock directly to the recipients under the terms of the plan. Ashland will
pay all expenses relating to the offer and sale to the recipients of the
shares of its common stock underlying the MAP stock options. Recipients
will not incur any commissions, fees or other charges or expenses in
connection with the offer of securities covered by this prospectus.
LEGAL MATTERS
The validity of the common stock offered hereby has been
passed upon by David L. Hausrath, Esq., Senior Vice President, General
Counsel and Secretary of Ashland. Mr. Hausrath beneficially owns 130,944
shares of our common stock (including common stock units held in our
deferred compensation plan and shares of common stock with respect to which
he has the right to acquire beneficial ownership within 60 days through the
exercise of stock options).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation are:
Filing fee for Registration Statement $ --
Accounting Fees and Expenses 2,000
Stock Exchange Listing Fees --
Other 5,000
--------
Total $7,000
========
All of the above amounts, other than the Commission filing fee and
the Stock Exchange listing fees, are estimates only.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 271B.8-500 through 580 of the Kentucky Business
Corporation Act contain detailed provisions for indemnification of
directors and officers of Kentucky corporations against judgments,
penalties, fines, settlements and reasonable expenses in connection with
litigation. Under Kentucky law, the provisions of a company's articles and
by-laws may govern the indemnification of officers and directors in lieu of
the indemnification provided for by statute. We have elected to indemnify
our officers and directors pursuant to our Restated Articles, our By-laws
and by contract rather than to have such indemnification governed by the
statutory provisions.
Article X of the Restated Articles permits, but does not require,
us to indemnify our directors, officers and employees to the fullest extent
permitted by law. Our By-laws require indemnification of our officers and
employees under certain circumstances. We have entered into indemnification
contracts with
13
each of our directors that require indemnification to the fullest extent
permitted by law, subject to certain exceptions and limitations.
We have purchased insurance which insures (subject to certain
terms and conditions, exclusions and deductibles) us against certain costs
which we might be required to pay by way of indemnification to our
directors or officers under our Restated Articles or By-laws,
indemnification agreements or otherwise and protects individual directors
and officers from certain losses for which they might not be indemnified by
us. In addition, we have purchased insurance which provides liability
coverage (subject to certain terms and conditions, exclusions and
deductibles) for amounts which we, or the fiduciaries under our employee
benefit plans, which may include our directors, officers and employees,
might be required to pay as a result of a breach of fiduciary duty.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration
Statement:
4.1 Second Restated Articles of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
3(i) to Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 2005).
4.2 Rights Agreement dated as of May 16, 1996 between
Ashland Inc. and National City Bank, as Rights Agent
(incorporated herein by reference to Exhibit 4.4 to Old
Ashland's Annual Report on Form 10-K for the fiscal year
ended September 30, 2001).
4.3 Amendment No. 1 dated as of March 18, 2004 to Rights
Agreement dated as of May 16, 1996 between Ashland Inc.
and National City Bank, as Rights Agent (incorporated
herein by reference to Exhibit 4 to Old Ashland's
Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2004).
4.4 Amendment No. 2 dated as of April 27, 2005 to Rights
Agreement dated as of May 16, 1996 between Ashland Inc.
and National City Bank, as Rights Agent (incorporated
herein by reference to Exhibit 4.4 of the Registrant's
Form S-4/A filed with the Commission on May 2, 2005
(Registration No. 333-119689-01)).
4.5 Specimen certificate of Common Stock, par value $0.01
per share (incorporated herein by reference to Exhibit
4.2 of the Registrant's Form S-4/A filed with the
Commission on May 10, 2005 (Registration No.
333-119689-01)).
4.6 By-laws of the Registrant (incorporated herein by
reference to Exhibit 3(ii) to Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended June
30, 2005).
5 Opinion of David L. Hausrath, Esq.
10.1 Ashland Inc. Stock Option Plan for Employees of Joint
Ventures (incorporated herein by reference to Exhibit
10.1 of Old Ashland's Form S-3 filed on with the
Commission on May 20, 2003 (Registration No.
333-105396)).
10.2 Notice of Grant of Non-Qualified Stock Option
(incorporated herein by reference to Exhibit 10.2 of Old
Ashland's Form S-3 filed with the Commission on May 20,
2003 (Registration No. 333-105396)).
10.3 Form of Notice of Grant of a Restoration Non-Qualified
Performance Based Stock Option (incorporated herein by
reference to Exhibit 10.3 to Old Ashland's Form S-3
filed with the Commission on May 20, 2003 (Registration
No. 333-105396)).
10.4 Form of Notice of Grant of Non-Qualified Performance
Based Stock Option (incorporated herein by reference to
Exhibit 10.4 of Old Ashland's Form S-3 filed with the
Commission on May 20, 2003 (Registration No.
333-105396)).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of David L. Hausrath, Esq. (included as part of
Exhibit 5).
24.1 Power of Attorney.
24.2 Certified Resolutions of the Registrant's Board of
Directors authorizing execution of this Registration
Statement by Power of Attorney.
14
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;
(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; 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)(l)(i) and (A)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to section 13 or
section 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 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
that remain unsold at the termination of the offering.
(B) The 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
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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy, as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
15
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 Post-Effective Amendment No. 1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Covington and
Commonwealth of Kentucky on the 9th day of August, 2005.
ASHLAND INC.
By: /s/ David L. Hausrath
---------------------------------
David L. Hausrath
Senior Vice President, General Counsel
and Secretary
16
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 1 has been signed by the
following persons in the capacities and on August 9, 2005.
SIGNATURE TITLE
*
-------------------------------------------------- Chairman of the Board and Chief Executive Officer
James J. O'Brien (Principal Executive Officer)
*
-------------------------------------------------- Senior Vice President and Chief Financial Officer
J. Marvin Quin (Principal Financial Officer)
*
-------------------------------------------------- Vice President and Controller
Lamar M. Chambers (Principal Accounting Officer)
* Director
--------------------------------------------------
Ernest H. Drew
* Director
--------------------------------------------------
Roger W. Hale
* Director
--------------------------------------------------
Bernadine P. Healy
* Director
--------------------------------------------------
Mannie L. Jackson
* Director
--------------------------------------------------
Patrick F. Noonan
* Director
--------------------------------------------------
Kathleen Ligocki
* Director
--------------------------------------------------
George A. Schaefer, Jr.
* Director
--------------------------------------------------
Theodore M. Solso
* Director
--------------------------------------------------
Michael J. Ward
*By: /s/ David L. Hausrath
----------------------------------------------
David L. Hausrath
Attorney-in-fact
17
EXHIBITS
4.1 Second Restated Articles of Incorporation of the
Registrant (incorporated herein by reference to Exhibit
3(i) to Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 2005).*
4.2 Rights Agreement dated as of May 16, 1996 between
Ashland Inc. and National City Bank, as Rights Agent
(incorporated herein by reference to Exhibit 4.4 to Old
Ashland's Annual Report on Form 10-K for the fiscal year
ended September 30, 2001).*
4.3 Amendment No. 1 dated as of March 18, 2004 to Rights
Agreement dated as of May 16, 1996 between Ashland Inc.
and National City Bank, as Rights Agent (incorporated
herein by reference to Exhibit 4 to Old Ashland's
Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2004).*
4.4 Amendment No. 2 dated as of April 27, 2005 to Rights
Agreement dated as of May 16, 1996 between Ashland Inc.
and National City Bank, as Rights Agent (incorporated
herein by reference to Exhibit 4.4 of the Registrant's
Form S-4/A filed with the Commission on May 2, 2005
(Registration No. 333-119689-01)).*
4.5 Specimen certificate of Common Stock, par value $0.01
per share (incorporated herein by reference to Exhibit
4.2 of the Registrant's Form S-4/A filed with the
Commission on May 10, 2005 (Registration No.
333-119689-01)).*
4.6 By-laws of the Registrant (incorporated herein by
reference to Exhibit 3(ii) to Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended June
30, 2005).*
5 Opinion of David L. Hausrath, Esq.**
10.1 Ashland Inc. Stock Option Plan for Employees of Joint
Ventures (incorporated herein by reference to Exhibit
10.1 of Old Ashland's Form S-3 filed on with the
Commission on May 20, 2003 (Registration No.
333-105396)).*
10.2 Notice of Grant of Non-Qualified Stock Option
(incorporated herein by reference to Exhibit 10.2 of Old
Ashland's Form S-3 filed with the Commission on May 20,
2003 (Registration No. 333-105396)).*
10.3 Form of Notice of Grant of a Restoration Non-Qualified
Performance Based Stock Option (incorporated herein by
reference to Exhibit 10.3 to Old Ashland's Form S-3
filed with the Commission on May 20, 2003 (Registration
No. 333-105396)).*
10.4 Form of Notice of Grant of Non-Qualified Performance
Based Stock Option (incorporated herein by reference to
Exhibit 10.4 of Old Ashland's Form S-3 filed with the
Commission on May 20, 2003 (Registration No.
333-105396)).*
23.1 Consent of Ernst & Young LLP.**
23.2 Consent of PricewaterhouseCoopers LLP.**
23.3 Consent of David L. Hausrath, Esq. (included as part of
Exhibit 5).**
24.1 Power of Attorney.**
24.2 Certified Resolutions of the Registrant's Board of
Directors authorizing execution of this Registration
Statement by Power of Attorney.**
-----------------
*Previously filed
**Filed herewith
18