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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 5, 2000.
REGISTRATION NO. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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ATLANTIS PLASTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 06-1088270
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1870 The Exchange, Suite 200
Atlanta, Georgia
30339
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
ATLANTIS PLASTICS, INC. DEFERRED COMPENSATION PLAN
(FULL TITLE OF THE PLAN)
ANTHONY F. BOVA
President and Chief Executive Officer
Atlantis Plastics, Inc.
1870 The Exchange, Suite 200
Atlanta, Georgia 30339
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(800) 497-7659
(TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies of Communications to:
KATHERINE M. KOOPS, ESQ.
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 572-6600
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED UNIT PRICE FEE
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<S> <C> <C> <C> <C>
Atlantis Plastics, Inc. $1,500,000 (1) 100% (2) $1,500,000 (2) $396 (2)
Deferred Compensation Plan
Obligations.........
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(1) The Atlantis Plastics, Inc. Deferred Compensation Plan Obligations are
unsecured obligations of the Registrant to pay benefits in the future in
accordance with the terms of the Atlantis Plastics, Inc. Deferred
Compensation Plan (the "Plan") for a select group of eligible employees.
(2) Estimated solely for the purpose of determining the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
I-1
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PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein
by reference:
(1) Annual Report on Form 10-K for the year ended December 31, 1999
(Commission File No. 1-9487).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the date
upon which this offering is terminated shall be deemed to be incorporated by
reference herein and to be part hereof from the date any such document is filed.
II-1
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ITEM 4. DESCRIPTION OF SECURITIES.
The Company's obligations (the "Obligations") under the Plan are
unsecured general obligations of the Registrant to pay benefits in the future in
accordance with the terms of the Plan.
Under the Plan, a participant may elect to defer a portion of his or
her compensation otherwise payable to the participant. Deferred amounts will be
credited with rates of return selected by the participant in accordance with
investment elections made by a participant.
Benefits under the Plan are generally payable upon a scheduled
distribution date at the election of the participant or upon termination of
employment, retirement or death. Participants are also permitted to request
hardship or other distributions, which may be permitted only at the discretion
of the Plan Administrator. Benefits will be distributed to participants in the
form of a cash lump sum payment.
Under the Plan, a participant's right to the Obligations cannot be
transferred, assigned, subject to garnishment, attachment or other legal
equitable process without the prior written consent of the Company or by
operation of law. The Obligations are not convertible into another security of
the Registrant. No trustee has been appointed having the authority to take
action with respect to the Obligations and each participant will be responsible
for acting independently with respect to, among other things, the making of
investment elections and giving of notices.
The Registrant may modify, amend or terminate the Plan at any time. No
such modifications or amendments shall have the effect of retroactively changing
or depriving any participants of benefits already accrued under the Plan.
All benefits provided under the Plan will be paid from the general
assets of the Registrant and no separate fund has been established to secure
payment. Notwithstanding the foregoing, the Registrant has established a grantor
trust to assist it in funding the Obligations and any payments made to a
participant or to a beneficiary of a participant from the trust will relieve the
Registrant from any further obligations under the Plan to the extent of such
payments.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, has rendered
an opinion regarding the legality of the Obligations registered hereby.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Registrant's Articles of Incorporation provide
that the Registrant shall indemnify and shall advance expenses on behalf of its
officers and directors to the fullest extent not prohibited by law in existence
either now or hereafter. The Registrant has also entered into an agreement with
each of its directors and certain of its officers wherein it has agreed to
indemnify each of them to the fullest extent permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability in the event the director
breaches or fails to perform his duties as a director and such director's breach
of, or failure to perform, such duties constitutes (a) a violation of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (b)
deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder; and (e) recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property in
a proceeding by or in the right of someone other than the Registrant or a
shareholder. The statute does not affect a directors' responsibilities under any
other law, such as the federal securities laws or state or federal environmental
laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
herein:
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
3.1 Articles of Incorporation. [Incorporated herein by reference to Exhibit 3.1
to Registrant's Form 8-B filed with the Commission on June 7, 1994.]
3.2 Bylaws. [Incorporated herein by reference to Exhibit 3.2 to Registrant's
Form 8-B filed with the Commission on June 7, 1994.]
4.1 Articles of Incorporation, filed as Exhibit 3.1, and Bylaws of Registrant,
filed as Exhibit 3.2, are incorporated herein by reference.
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
II-3
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<S> <C>
23.1 Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (see signature pages to this Registration Statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (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 by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 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 which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration
II-4
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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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction to the questions whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this the 30th day of
March, 2000.
ATLANTIS PLASTICS, INC.
By: /s/ Paul Rudovsky
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Paul Rudovsky
Chief Financial Officer, Treasurer and
Executive Vice President--
Finance and Administration (Principal
Financial Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Earl W. Powell and Phillip T. George, M.D., as
his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agent, full power and
authority to do and perform each and every act and thing required or necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agent, or his substitute, could lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
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<CAPTION>
SIGNATURE TITLE
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<S> <C> <C>
/s/ Earl W. Powell Chairman of the Board Date: March 30, 2000
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Earl W. Powell
/s/ Phillip T. George Director and Vice Chairman Date: March 31, 2000
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Phillip T. George, M.D.
/s/ Anthony F. Bova President, Chief Executive Officer and Director Date: March 30, 2000
- ----------------------------------- (Principle Executive Officer)
Anthony F. Bova
/s/ Paul Rudovsky Executive Vice President, Finance and Date: March 30, 2000
- ----------------------------------- Administration (Principal Financial Officer)
Paul Rudovsky
/s/ Charles D. Murphy, III Director Date: April 3, 2000
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Charles D. Murphy, III
/s/ Chester B. Vanatta Director Date: March 31, 2000
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Chester B. Vanatta
/s/ Larry D. Horner Director Date: March 30, 2000
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Larry D. Horner
/s/ Cesar L. Alvarez Director Date: March 30, 2000
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Cesar L. Alvarez
</TABLE>
II-6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
3.1 Articles of Incorporation. [Incorporated herein by reference to Exhibit 3.1 to
Registrant's Form 8-B filed with the Commission on June 7, 1994.]
3.2 Articles of Incorporation. [Incorporated herein by reference to Exhibit 3.1 to
Registrant's Form 8-B filed with the Commission on June 7, 1994.]
4.1 Articles of Incorporation, filed as Exhibit 3.1, and Bylaws of Registrant, filed as
Exhibit 3.2, are incorporated herein by reference.
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
23.1 Consent of Powell, Goldstein, Frazer & Murphy LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (see signature page to this Registration Statement).
</TABLE>
II-7
<PAGE>
March 30, 2000
Atlantis Plastics, Inc.
1870 The Exchange, Suite 200
Atlanta, Georgia 30339
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as counsel for Atlantis Plastics, Inc., a Florida
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-8 (the "Registration Statement") of an aggregate of $1,500,000 of obligations
("Obligations") of the Company pursuant to the Atlantis Plastics, Inc.
Deferred Compensation Plan (the "Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the Company and the adoption
of the Plan as we have deemed necessary and advisable.
In all such examinations, we have assumed the genuineness of all
signatures on all originals and copies of documents we have examined, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all certified, conformed or photostatic copies. As to
questions of fact material and relevant to our opinion, we have relied upon
certificates or representations of Company officials and of appropriate state,
local and federal officials.
We express no opinion as to matters under or involving laws other than
the Business Corporation Act of the State of Florida.
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that the
Obligations, when issued by the Company in the manner provided for in the Plan,
will be legally issued, fully paid and non-assessable, and will constitute the
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject, as to enforcement, (i) to bankruptcy,
insolvency, reorganization, moratorium and other laws of
<PAGE>
Atlantis Plastics, Inc.
March 30, 2000
Page 2 of 2
general applicability relating to or affecting creditors' rights, and (ii) to
general principles of equity, whether such enforcement is considered in a
proceeding in equity or law.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
347891/2
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Atlantis Plastics, Inc. Deferred
Compensation Plan to our report dated February 4, 2000, with respect to the
consolidated financial statements and schedule of Atlantis Plastics, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31,
1999, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
March 31, 2000
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 11, 1998, except as for Note
6, as to which the date is February 20,1998, which is included and incorporated
by reference in Atlantis Plastics, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1999.
PRICEWATERHOUSECOOPERS LLP
Atlanta, Georgia
March 31, 2000
