As filed with the Securities and Exchange Commission on February 3, 1997
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
FORT HOWARD CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
Delaware 2676 39-1090992
<S> <C> <C>
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
--------------------
</TABLE>
1919 South Broadway
Green Bay, Wisconsin 54304
(414) 435-8821
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------
FORT HOWARD CORPORATION
MANAGEMENT EQUITY PARTICIPATION AGREEMENT
FORT HOWARD CORPORATION
MANAGEMENT EQUITY PLAN
FORT HOWARD CORPORATION
1995 STOCK INCENTIVE PLAN
FORT HOWARD CORPORATION
1995 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the Plans)
--------------------
JAMES W. NELLEN II
Vice President and Secretary
Fort Howard Corporation
1919 South Broadway
Green Bay, Wisconsin 54304
(414) 435-8821
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
==============================================================================
<TABLE>
<S> <C> <C> <C>
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Number of Shares Offering Price Per Aggregate Registration
Securities to be Registered to be Registered(1) Share(2) Offering Price(2) Fee
- -------------------------------------------------------------------------------------------------
Common Stock par value $.01
per Share..................1,529,112 Shares $19.75 to $30.81 $36,896,874.72 $11,180.87
=================================================================================================
(1) The Aggregate number of shares of Common Stock registered hereunder consists of shares
of Common Stock which have been authorized and reserved for issuance upon the exercise of
stock options which have been granted under the Fort Howard Corporation 1995 Stock Incentive
Plan (the "1995 Plan"). Pursuant to Rule 416 promulgated under the Securities Act of 1933,
as amended (the "Securities Act"), this Registration Statement covers, in addition to the
number of shares of Common Stock stated above, such additional shares of Common Stock to be
offered or issued to prevent dilution as a result of future stock dividends or stock splits.
(2) Pursuant to Rule 457(h) under the Securities Act, offering prices are based on (a) the
option exercise price of $19.75 per share for 716,100 shares; (b) the option exercise
price of $27.75 per share for 750,000 shares; and (c) $30.81 per share for 63,012 shares
estimated solely for the purpose of calculating the amount of registration fee based on the
average of the high and low prices of the Common Stock as reported by Nasdaq on January 28,
1997, a date within five business days prior to the date of filing of this Registration
Statement.
</TABLE>
EXPLANATORY NOTE
The contents of the Registrant's Registration Statement on Form S-8
(File No. 33-63099) are incorporated herein by reference in their entirety.
ITEM 8. EXHIBITS.
Exhibit No. Description
*4.1 Restated Certificate of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.1 to the
Company's Form 10-K for the year ended December 31,
1994, File No. 20473.)
+4.2 Amended and Restated By-laws of the Company.
*4.3 1995 Stock Incentive Plan (Incorporated by reference to
Exhibit No. 10.15 as filed with the Company's Amendment
No. 1 to Form S-1 on February 8, 1995, No. 33-56573).
+4.4 Amendment No. 1 to 1995 Stock Incentive Plan.
+5 Opinion of Shearman & Sterling, counsel to the
Registrant as to the legality of the securities
registered hereby.
+23.1 Consent of Arthur Andersen LLP.
+23.2 Consent of Shearman & Sterling (included in Exhibit 5).
*24 Powers of Attorney (included as part of signature
page).
------------
+Filed herewith
*Previously filed.
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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Green Bay, State of Wisconsin on the
3rd day of February, 1997.
FORT HOWARD CORPORATION
By /s/ James W. Nellen II
---------------------
James W. Nellen II
Vice President and Secretary
- 2 -
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director, President and Chief February 3, 1997
- ---------------------- Executive Officer (principal
Michael T. Riordan executive officer)
* Director and Chairman of the February 3, 1997
- ---------------------- Board of Directors
Donald H. DeMeuse
* Director, Vice Chairman February 3, 1997
- ---------------------- and Chief Financial Officer
Kathleen J. Hempel (principal financial and
accounting officer)
* Director February 3, 1997
- ----------------------
Donald Patrick Brennan
* Director February 3, 1997
- ----------------------
Frank V. Sica
* Director February 3, 1997
- ----------------------
Robert H. Niehaus
* Director February 3, 1997
- ----------------------
David I. Margolis
* Director February 3, 1997
- ----------------------
Dudley J. Godfrey, Jr.
* Director February 3, 1997
- ----------------------
James L. Burke
*By /s/ James W. Nellen II
- ---------------------- February 3, 1997
James W. Nellen II
Attorney-In-Fact
- 3 -
INDEX TO EXHIBITS
Exhibit No. Description
*4.1 Restated Certificate of Incorporation of the Company.
(Incorporated by reference to Exhibit 3.1 to the
Company's Form 10-K for the year ended December 31,
1994, File No. 20473.)
+4.2 Amended and Restated By-laws of the Company.
*4.3 1995 Stock Incentive Plan (Incorporated by reference to
Exhibit No. 10.15 as filed with the Company's Amendment
No. 1 to Form S-1 on February 8, 1995, No. 33-56573).
+4.4 Amendment No. 1 to 1995 Stock Incentive Plan.
+5 Opinion of Shearman & Sterling, counsel to the
Registrant as to the legality of the securities
registered hereby.
+23.1 Consent of Arthur Andersen LLP.
+23.2 Consent of Shearman & Sterling (included in Exhibit 5).
*24 Powers of Attorney (included as part of signature
page).
------------
+Filed herewith
*Previously filed.
Exhibit 4.2
-----------
December 9, 1996
AMENDED AND RESTATED
BY-LAWS
OF
FORT HOWARD CORPORATION
ARTICLE I
OFFICES
SECTION 1. Registered Office in Delaware. The address of the
registered office of Fort Howard Corporation (hereinafter called the
"Corporation") in the State of Delaware shall be 32 Lookerman Square Suite L-
100, in the City of Dover, County of Kent, Delaware 19901, and the registered
agent in charge thereof shall be The Prentice-Hall Corporation System, Inc.
SECTION 2. Other Offices. The Corporation may have an office or
offices at any other place or places within or without the State of Delaware.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Annual Meeting. The annual meeting of stockholders
for the election of directors and for the transaction of such other business
as may properly come before the meeting shall be held at such place within or
without the State of Delaware, and at such date and hour, as shall be
designated by the Board of Directors of the Corporation (the "Board") and set
forth in the notice or in a duly executed waiver of notice thereof.
SECTION 2. Special Meetings. A special meeting of the
stockholders for any purpose or purposes may be called at any time by a
majority of the members of the Board or the Chief Executive Officer of the
Corporation. A special meeting of stockholders of the Corporation may not be
called by any other person or persons. Any such meeting shall be held at such
place within or without the State of Delaware, and at such date and hour, as
shall be designated in the notice or in a duly executed waiver of notice of
such meeting.
Only such business as is stated in the written notice of a special
meeting may be acted upon thereat.
SECTION 3. Notice of Meetings. Except as otherwise provided by
law, written notice of each annual or special meeting of stockholders stating
the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is held, shall be given
personally or by first class mail to each stockholder entitled to vote at such
meeting, not less than 10 nor more than 60 calendar days before the date of
the meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. If, prior to the time of mailing, the Secretary shall have
received from any stockholder entitled to vote a written request that notices
intended for such stockholder are to be mailed to an address other than the
address that appears on the records of the Corporation, notices intended for
such stockholder shall be mailed to the address designated in such request.
Notice of a special meeting may be given by the person or persons
calling the meeting, or, upon the written request of such person or persons,
by the Secretary of the Corporation on behalf of such person or persons. If
the person or persons calling a special meeting of stockholders give notice
thereof, such person or persons shall forward a copy thereof to the Secretary.
Every request to the Secretary for the giving of notice of a special meeting
of stockholders shall state the purpose or purposes of such meeting.
SECTION 4. Waiver of Notice. Notice of any annual or special
meeting of stockholders need not be given to any stockholder entitled to vote
at such meeting who files a written waiver of notice with the Secretary, duly
executed by the person entitled to notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
meeting of stockholders need be specified in any written waiver of notice.
Attendance of a stockholder at a meeting, in person or by proxy, shall
constitute a waiver of notice of such meeting, except as provided by law.
SECTION 5. Adjournments. When a meeting is adjourned to another
date, hour or place, notice need not be given of the adjourned meeting if the
date, hour and place thereof are announced at the meeting at which the
adjournment is taken. If the adjournment is for more than 30 calendar days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the adjourned meeting. At the adjourned meeting
any business may be transacted which might have been transacted at the
original meeting.
When any meeting is convened the presiding officer, if directed by
the Board, may adjourn the meeting if (a) no quorum is present for the
transaction of business, or (b) the Board determines that adjournment is
necessary or appropriate to enable the stockholders (i) to consider fully
information which the Board determines has not been made sufficiently or
timely available to stockholders or (ii) otherwise to exercise effectively
their voting rights.
SECTION 6. Quorum. Except as otherwise provided by law or the
Restated Certificate of Incorporation of the Corporation (the "Restated
Certificate of Incorporation"), whenever a class of stock of the Corporation
is entitled to vote as a separate class, or whenever classes of stock of the
Corporation are entitled to vote together as a single class, on any matter
brought before any meeting of the stockholders, whether annual or special,
holders of shares entitled to cast a majority of the votes entitled to be cast
by all the holders of the shares of stock of such class voting as a separate
class, or classes voting together as a single class, as the case may be,
outstanding and entitled to vote thereat, present in person or by proxy, shall
constitute a quorum at any such meeting of the stockholders. If, however,
such quorum shall not be present or represented at any such meeting of the
stockholders, the stockholders entitled to vote thereat may adjourn the
meeting from time to time in accordance with Section 5 of this Article II
until a quorum shall be present or represented.
SECTION 7. Voting. Unless otherwise provided in the Restated
Certificate of Incorporation, each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of capital
stock entitled to vote thereat held by such stockholder. Except as otherwise
provided by law or the Restated Certificate of Incorporation or these Restated
By-Laws, when a quorum is present with respect to any matter brought before
any meeting of the stockholders, the vote of the holders of shares entitled to
cast a majority of the votes entitled to be cast by all the holders of the
shares constituting such quorum shall decide any such matter. Votes need not
be by written ballot, unless the Board, in its discretion, or the officer of
the Corporation presiding at a meeting of stockholders, in his discretion,
requires any vote or votes cast at such meeting to be cast by written ballot.
SECTION 8. Proxies. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for
such stockholder by proxy. Such proxy shall be filed with the Secretary
before such meeting of stockholders at such time as the Board may require. No
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
SECTION 9. Advance Notice of Business to Be Transacted at Annual
Meetings. To be properly brought before the annual meeting of stockholders,
business must be either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board (or any duly
authorized committee thereof), (b) otherwise properly brought before the
meeting by or at the direction of the Board (or any duly authorized committee
thereof) or (c) otherwise properly brought before the meeting by any
stockholder of the Corporation (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Section 9 and on the record
date for the determination of stockholders entitled to vote at such meeting
and (ii) who complies with the notice procedures set forth in this Section 9.
In addition to any other applicable requirements, including but not limited to
the requirements of Rule 14a-8 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), for business to be properly brought before an annual meeting
by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice
by the stockholder in order to be timely must be so received not later than
the close of business on the tenth day following the day on which such notice
of the date of the annual meeting is mailed or such public disclosure of the
date of the annual meeting is made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to
be brought before the meeting and the reasons for conducting such business at
the meeting, (b) the name and record address of such stockholder, (c) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, together with
evidence reasonably satisfactory to the Secretary of such beneficial
ownership, (d) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (e) a
representation that such stockholder intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting.
Notwithstanding anything in these Restated By-Laws to the
contrary, no business shall be conducted at the annual meeting of stockholders
except business brought before such meeting in accordance with the procedures
set forth in this Section 9; provided, however, that, once business has been
properly brought before such meeting in accordance with such procedures,
nothing in this Section 9 shall be deemed to preclude discussion by any
stockholder of any such business. If the chairman of such meeting determines
that business was not properly brought before the meeting in accordance with
the foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall
not be transacted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, business and affairs of
the Corporation shall be managed by the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
law or by the Restated Certificate of Incorporation directed or required to be
exercised or done by the stockholders.
SECTION 2. Number and Term of Holding Office. Subject to the
rights, if any, of holders of preferred stock of the Corporation, the number
of directors which shall constitute the whole Board shall consist of not less
than three (3) nor more than fifteen (15) members, the exact number of which
shall be fixed by the Board from time to time. The Board shall, by resolution
passed by a majority of the Board, designate the directors to serve as initial
Class I, Class II and Class III directors upon filing of the Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware. Except as provided in Section 5 of this Article III, directors
shall be elected by a plurality of the votes cast at annual meetings of
stockholders, and each director so elected shall hold office as provided by
Article VIII of the Restated Certificate of Incorporation. None of the
directors need be stockholders of the Corporation.
SECTION 3. Nomination of Directors and Advance Notice Thereof.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation, except as may
be otherwise provided in the Restated Certificate of Incorporation with
respect to the right of holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances.
Nominations of persons for election to the Board may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors, (a) by or at the direction of the Board (or
any duly authorized committee thereof) or (b) by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 3 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 3. In addition
to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than 60 days nor
more than 90 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within 30 days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting is mailed or
such public disclosure of the date of the annual meeting is made, whichever
first occurs, or (b) in the case of a special meeting of stockholders called
for the purpose of electing directors, not later than the close of business on
the tenth day following the day on which notice of the date of the special
meeting is mailed or public disclosure of the date of the special meeting is
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for election as a director, (i) the name, age, business address
and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
the person and (iv) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice, (i)
the name and record address of such stockholder, (ii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, together with evidence
reasonably satisfactory to the Secretary of such beneficial ownership, (iii) a
description of all arrangements or understandings between such stockholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy
at the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section l4 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 3. If the chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the chairman of the
meeting shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
SECTION 4. Resignation. Any director may resign at any time by
giving written notice to the Board, the Chief Executive Officer or the
Secretary of the Corporation. Any such resignation shall take effect at the
time specified therein or, if the time when it shall become effective shall
not be specified therein, then it shall take effect when accepted by action of
the Board. Except as aforesaid, acceptance of such resignation shall not be
necessary to make it effective.
SECTION 5. Vacancies. Subject to the rights of the holders of
any series of Preferred Stock or any other class of capital stock of the
Corporation (other than the Common Stock) then outstanding, any vacancy in the
Board, arising from death, resignation, removal, an increase in the number of
directors or any other cause, may be filled either by a majority vote of the
remaining directors, although less than a quorum, or by the sole remaining
director. Any director elected to fill a vacancy shall hold office for a term
that shall coincide with the term of the class to which such director shall
have been elected.
SECTION 6. Meetings. (a) Annual Meetings. As soon as
practicable after each annual election of directors, the Board shall meet for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to Section
7 of this Article III.
(b) Other Meetings. Other meetings of the Board shall be held
at such times as the Board shall from time to time determine or upon call by
the Chief Executive Officer of the Corporation or any two directors.
(c) Notice of Meetings. Regular meetings of the Board may be
held without notice. The Secretary of the Corporation shall give notice to
each director of each special meeting, including the time and place of such
special meeting. Notice of each such meeting shall be given to each director
either by mail, at least two days before the day on which such meeting is to
be held, or by telephone, telegram, facsimile, telex or cable not later than
the day before the day on which such meeting is to be held or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances. Notice of any meeting shall not be required
to be given to any director who shall attend such meeting. A waiver of notice
by the person entitled thereto, whether before or after the time of any such
meeting, shall be deemed equivalent to adequate notice.
(d) Place of Meetings. The Board may hold its meetings at such
place or places within or without the State of Delaware as the Board may from
time to time by resolution determine or as shall be designated in the
respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. Except as otherwise provided
by law, the Restated Certificate of Incorporation or these Restated By-Laws, a
majority of the total number of directors then in office shall be necessary at
any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the affirmative vote of a majority of those
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board. In the
absence of a quorum for any such meeting, a majority of the directors present
thereat may adjourn such meeting from time to time until a quorum shall be
present thereat. Notice of any adjourned meeting need not be given.
(f) Organization and Order of Business. The Chief Executive
Officer shall act as chairman of each meeting of the Board and preside
thereat, or, in the absence of the Chief Executive Officer at any meeting of
the Board, the Vice Chairman shall act as chairman of such meeting and preside
thereat, or, in the absence of both the Chief Executive Officer and the Vice
Chairman at any meeting of the Board, any other director chosen by a majority
of the directors present thereat shall act as chairman of the meeting and
preside thereat. The Secretary of the Corporation or, in the case of his
absence, any person whom the chairman of the meeting shall appoint, shall act
as secretary of such meeting and keep the minutes thereof.
SECTION 7. Action by Consent. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members
of the Board or such committee, as the case may be, and such written consent
or consents are filed with the minutes of the proceedings of the Board or such
committee.
SECTION 8. Meetings by Conference Telephone, etc. Any one or
more members of the Board, or of any committee thereof, may participate in a
meeting of the Board, or of such committee, by means of conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
SECTION 9. Compensation. Each director, in consideration of his
serving as such, shall be entitled to receive from the Corporation such amount
per annum, if any, or such fees, if any, for attendance at meetings of the
Board or of any committee thereof, or both, as the Board shall from time to
time determine. The Board may likewise provide that the Corporation shall
reimburse each director or member of a committee for any expenses incurred by
him on account of his attendance at any such meeting. Nothing contained in
this Section 9 shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES
The Board, by resolution passed by a majority of the whole Board,
may designate members of the Board to constitute one or more committees which
shall in each case consist of such number of directors, not fewer than two,
and, to the extent permitted by law and provided in the resolution
establishing such committee, shall have and exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified members
at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any absent or
disqualified member. A majority of all the members of any such committee may
fix its rules of procedure, determine its action and fix the time and place,
whether within or without the State of Delaware, of its meetings and specify
what notice thereof, if any, shall be given, unless the Board shall otherwise
by resolution provide. The Board shall have power to change the members of
any such committee at any time, to fill vacancies therein and to discharge any
such committee, either with or without cause, at any time. Any committee, to
the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation. Each
committee shall keep regular minutes and report to the Board when required.
ARTICLE V
OFFICERS
SECTION 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a President and Chief Executive Officer, a Vice
Chairman, one or more Executive Vice Presidents, one or more Senior Vice
Presidents and one or more Vice Presidents, a Treasurer, a Chief Financial
Officer, a Secretary and a Controller. Each such officer shall be elected or
appointed by the Board at its annual meeting and shall hold office for such
term as may be determined by the Board. Each such officer shall hold office
until the next succeeding annual meeting of the Board and until his successor
is elected or until his earlier death or resignation or removal in the manner
hereinafter provided. Any two or more offices may be held by the same person.
The Board or the President and Chief Executive Officer may elect
or appoint such other officers of the Corporation (including one or more
Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries) as
it or he deems necessary who shall have such authority and shall perform such
duties as the Board or he may prescribe. If additional officers are elected
or appointed, each of them shall hold office until his successor is elected or
appointed or until his earlier death or resignation or removal in the manner
hereinafter provided.
SECTION 2. Authority and Duties. All officers, as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the Corporation as may be provided in these
Restated By-Laws or, to the extent not so provided, by resolution of the
Board.
SECTION 3. Resignation and Removal. (a) Any officer may resign
at any time by giving written notice to the Board, the Chief Executive Officer
or the Secretary of the Corporation, and such resignation shall take effect at
the time specified therein or, if the time when it shall become effective
shall not be specified therein, when accepted by action of the Board. Except
as aforesaid, the acceptance of such resignation shall not be necessary to
make it effective.
(b) All officers and agents elected or appointed by the Board
shall be subject to removal at any time by the Board and all officers and
agents appointed by the Chief Executive Officer shall be subject to removal at
any time by the Chief Executive Officer, in each case, with or without cause.
SECTION 4. Vacancies. Any vacancy in any office may be filled
for the unexpired portion of the term in the same manner as provided for
election and appointment to such office.
SECTION 5. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the Board and at all meetings of the
stockholders and shall have and exercise such further powers and duties as may
from time to time be conferred upon or assigned to him by the Board.
SECTION 6. President and Chief Executive Officer. The President
and Chief Executive Officer of the Corporation, subject to the direction of
the Board, shall have general charge of the business and affairs of the
Corporation, shall have the direction of all other officers, agents and
employees of the Corporation and may assign such duties to the other officers
of the Corporation as he deems appropriate. At the request of the Chairman of
the Board, or in the case of the absence or inability to act of the Chairman
of the Board, the President and Chief Executive Officer, until otherwise
determined, and subject to any limitations imposed by the Board, shall assume
the duties of the Chairman of the Board, and when so acting, but subject to
the foregoing, shall have all of the power of, and be subject to all the
restrictions upon, the Chairman of the Board.
SECTION 7. Vice Chairman. The Vice Chairman, subject to the
direction of the President and Chief Executive Officer, shall assist the
President and Chief Executive Officer in carrying out the orders and
resolutions of the Board and shall perform such other duties as the President
and Chief Executive Officer or the Board shall from time to time assign.
SECTION 8. Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents. Each Executive Vice President, Senior Vice President and
Vice President of the Corporation shall have such powers and perform such
duties as the Chief Executive Officer or the Board may from time to time
prescribe and shall perform such other duties as may be prescribed by these
By-Laws.
SECTION 9. Chief Financial Officer. The Chief Financial Officer
shall, subject to the direction of the Chief Executive Officer, have overall
charge of all of the financial affairs of the Corporation.
SECTION 10. Treasurer. The Treasurer of the Corporation shall
have charge and custody of and be responsible for all funds and securities of
the Corporation.
SECTION 11. Secretary. The Secretary of the Corporation shall
keep the records of all meetings of the stockholders and the Board. He shall
affix the seal of the Corporation to all deeds, contracts, bonds or other
instruments requiring the corporate seal when the same shall have been signed
on behalf of the Corporation by a duly authorized officer and shall be the
custodian of all contracts, deeds, documents and all other indicia of title to
properties owned by the Corporation and of its other corporate records.
SECTION 12. Controller. The Controller of the Corporation shall
have charge and custody of and be responsible for the Corporation's books of
account.
ARTICLE VI
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Execution of Documents. Any officer, employee or
agent of the Corporation designated by the Board (or any duly authorized
committee of the Board to the extent permitted by law) shall have power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and
in the name of the Corporation, and the Board (or such a committee) may
authorize any such officer, employee or agent to delegate such power
(including authority to redelegate) by written instrument to other officers,
employees or agents of the Corporation.
SECTION 2. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board or the Chief Executive Officer or any other officer
of the Corporation to whom power in that respect shall have been delegated by
the Board shall select.
SECTION 3. Proxies in Respect of Stock or Other Securities of
Other Corporations. The Board or the Chief Executive Officer shall designate
the officers of the Corporation who shall have authority from time to time to
appoint an agent or agents of the Corporation to exercise in the name and on
behalf of the Corporation the powers and rights that the Corporation may have
as the holder of stock or other securities in any other corporation, and to
vote or consent in respect of such stock or securities. Such designated
officers may instruct the person or persons so appointed as to the manner of
exercising such powers and rights, and such designated officers may execute or
cause to be executed in the name and on behalf of the Corporation and under
its corporate seal, or otherwise, such written proxies, powers of attorney or
other instruments as they may deem necessary or proper in order that the
Corporation may exercise such powers and rights.
ARTICLE VII
SHARES AND TRANSFER OF SHARES
SECTION 1. Certificates of Stock. Every owner of shares of stock
of the Corporation shall be entitled to have a certificate evidencing the
number of shares of stock of the Corporation owned by him or it and
designating the class of stock to which such shares belong, which shall
otherwise be in such form as the Board shall prescribe. Each such certificate
shall bear the signature (or a facsimile thereof) of the Chief Executive
Officer or the Vice Chairman or the President or an Executive Vice President
or a Vice President and the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation.
SECTION 2. Record. A record shall be kept of the name of the
person, firm or corporation owning the stock represented by each certificate
evidencing stock of the Corporation issued, the number of shares represented
by each such certificate, and the date thereof, and, in the case of
cancellation, the date of cancellation. Except as otherwise expressly
required by law, the person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as
regards the Corporation.
SECTION 3. Transfer of Stock. (a) The transfer of shares of
stock and the certificates evidencing such shares of stock of the Corporation
shall be governed by Article 8 of Subtitle I of Title 6 of the Delaware Code
(the Uniform Commercial Code), as amended from time to time.
(b) Registration of transfers of shares of stock of the
Corporation shall be made only on the books of the Corporation upon request of
the registered holder thereof, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the
Corporation, and upon the surrender of the certificate or certificates
evidencing such shares properly endorsed or accompanied by a stock power duly
executed.
SECTION 4. Addresses of Stockholders. Each stockholder shall
designate to the Secretary of the Corporation an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and,
if any stockholder shall fail to so designate such an address, corporate
notices may be served upon him by mail directed to him at his post office
address, if any, as the same appears on the share record books of the
Corporation or at his last known post office address.
SECTION 5. Lost, Destroyed or Mutilated Certificates. A holder
of any shares of stock of the Corporation shall promptly notify the
Corporation of any loss, destruction or mutilation of any certificate or
certificates evidencing all or any such shares of stock. The Board may, in
its discretion, cause the Corporation to issue a new certificate in place of
any certificate theretofore issued by it and alleged to have been mutilated,
lost, stolen or destroyed, upon the surrender of the mutilated certificate or,
in the case of loss, theft or destruction of the certificate, upon
satisfactory proof of such loss, theft or destruction, and the Board may, in
its discretion, require the owner of the lost, stolen or destroyed certificate
or his legal representative to give the Corporation a bond sufficient to
indemnify the Corporation against any claim made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 6. Facsimile Signatures. Any or all of the signatures on
a certificate evidencing shares of stock of the Corporation may be facsimiles.
SECTION 7. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with the Restated
Certificate of Incorporation or these Restated By-Laws, concerning the issue,
transfer and registration of certificates evidencing stock of the Corporation.
It may appoint, or authorize any principal officer or officers to appoint, one
or more transfer agents and one or more registrars, and may require all
certificates of stock to bear the signature or signatures (or a facsimile or
facsimiles thereof) of any of them. The Board may at any time terminate the
employment of any transfer agent or any registrar of transfers. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall cease to be such officer,
transfer agent or registrar, whether because of death, resignation, removal or
otherwise, before such certificate or certificates shall have been delivered
by the Corporation, such certificate or certificates may nevertheless be
adopted by the Corporation and be issued and delivered as though the person or
persons who signed or whose facsimile signature has been placed upon such
certificate or certificates had not ceased to be such officer, transfer agent
or registrar.
SECTION 8. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting
of stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
such action. A determination of stockholders entitled to notice of, or to
vote at, any meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
SECTION 9. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
records as the owner of shares of stock to receive dividends and to vote as
such owner, shall be entitled to hold liable for calls and assessments a
person registered on its records as the owner of shares of stock, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares of stock on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
SECTION 10. Stockholder Agreements. Shares of stock of the
Corporation may be subject to one or more agreements abridging, limiting or
restricting the rights of any one or more stockholders to sell, assign,
transfer, mortgage, pledge or hypothecate any or all of the stock of the
Corporation held by them, or providing for preemptive rights, or may be
subject to one or more agreements providing a purchase option with respect to
any shares of stock of the Corporation. If such agreements exist, all
certificates evidencing shares of stock subject to such abridgements,
limitations, restrictions or options shall have reference thereto endorsed on
such certificate and such stock shall not thereafter be transferred on the
books of the Corporation except in accordance with the terms and conditions of
such agreement or agreements. Copies of such agreement or agreements shall be
maintained at the offices of the Corporation.
ARTICLE VIII
BOOKS AND RECORDS
The books and records of the Corporation may be kept at such place
or places within or without the State of Delaware as the Board may from time
to time determine.
ARTICLE IX
SEAL
The Board shall provide a corporate seal which shall bear the full
name of the Corporation.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change from time to time, by the Board.
ARTICLE XI
INDEMNIFICATION
SECTION 1. General. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
full extent authorized or permitted by law, as now or hereafter in effect,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. Derivative Actions. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, to the full extent authorized or permitted by law, as now or
hereafter in effect, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation;
provided, however, that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
SECTION 3. Successful Defense. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
in sections 1 and 2 above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
SECTION 4. Proceedings Initiated by any Person. Notwithstanding
anything to the contrary contained in sections 1 or 2 above, except for
proceedings to enforce rights to indemnification, the Corporation shall not be
obligated to indemnify any person in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized in advance, or unanimously consented to, by the Board of Directors.
SECTION 5. Procedure. Any indemnification under sections 1 and 2
above (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in sections 1
and 2 above. Such determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding even though
less than a quorum, or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
SECTION 6. Advancement of Expenses. Expenses (including
attorneys' fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation pursuant to this
Article XI or as otherwise authorized by law. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems
appropriate.
SECTION 7. Rights Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of this Article XI shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
SECTION 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of the DGCL.
SECTION 9. Definition of "Corporation". For purposes of this
Article XI, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the
provisions of this Article XI with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued.
SECTION 10. Certain Other Definitions. For purposes of this
Article XI, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan; and references to "serving
at the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves service by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the Corporation", as referred to in this Article XI.
SECTION 11. Continuation of Rights. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article XI
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 12. Repeal or Modification. Any repeal or modification
of this Article XI by the stockholders of the Corporation shall not adversely
affect any rights to indemnification and to advancement of expenses that any
person may have at the time of such repeal or modification with respect to any
acts or omissions occurring prior to such repeal or modification.
ARTICLE XII
AMENDMENTS
These Restated By-Laws, or any of them, may be altered, amended or
repealed, or new by-laws may be made, but only to the extent any such
alteration, amendment, repeal or new by-law is not inconsistent with any
provision of the Restated Certificate of Incorporation, either by a majority
of the whole Board or by the stockholders of the Corporation upon the
affirmative vote of the holders of 80% of the outstanding shares of capital
stock of the Corporation entitled to vote thereon.
Exhibit 4.4
-----------
Amendment No. 1
to the Fort Howard Corporation
1995 STOCK INCENTIVE PLAN
The second sentence contained in Section 3(a) of the Fort Howard Corporation
1995 Stock Incentive Plan is hereby deleted.
EXHIBIT 5
---------
SHEARMAN & STERLING
FAX: 212-848-7179 599 LEXINGTON AVENUE ABU DHABI
212-848-7181 NEW YORK, N.Y. 10022-6069 BEIJING
TELEX: 667290 WUI 212 848-4000 BUDAPEST
DUSSELDORF
FRANKFURT
HONG KONG
WRITER'S DIRECT NUMBER: LONDON
LOS ANGELES
FEBRUARY 3, 1997 NEW YORK
PARIS
SAN FRANCISCO
SINGAPORE
TOKYO
TORONTO
WASHINGTON, D.C.
Fort Howard Corporation
1919 South Broadway
P. O. Box 19130
Green Bay, WI 54307
Ladies and Gentlemen:
We have acted as counsel for Fort Howard Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") of the Company filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to 1,529,112 shares (the
"Shares") of common stock, par value $.01 per share, of the Company (the
"Common Stock"), to be issued from time to time pursuant to the Company's
1995 Stock Incentive Plan (the "Plan").
In so acting, we have examined the Registration Statement and we have
also examined and relied as to factual matters upon the representations and
warranties contained in originals, or copies certified or otherwise identified
to our satisfaction, of such documents, records, certificates and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents, certificates
and instruments submitted to us as originals and the conformity with originals
of all documents submitted to us as copies.
The opinion expressed below is limited to the law of the State of
New York, the General Corporation Law of Delaware and the federal law of the
United States, and we do not express any opinion herein concerning any other
law.
- 1 -
Based upon the foregoing and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that the Shares have been
duly authorized by the Company and, when (a) issued and delivered by the
Company in accordance with the terms of the Plan and (b) paid for in full in
accordance with the terms of the Plan, the Shares will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/SHEARMAN & STERLING
Exhibit 23.1
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated January 30,
1996, included in Fort Howard Corporation's Form 10-K for the year ended
December 31, 1995, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
January 30, 1997.
