<PAGE>
As filed with the Securities and Exchange Commission on November 7, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
GAYLORD CONTAINER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-3472452
(State or other jurisdiction of (I.R.S. Empoyer
incorporation or organization) Identification Number)
500 Lake Cook Road, Suite 400 60015
Deerfield, Illinois (Zip Code)
(Address of Principal Executive Offices)
GAYLORD CONTAINER CORPORATION
1997 LONG-TERM EQUITY INCENTIVE PLAN
(Full title of the plan)
Daniel P. Casey
500 Lake Cook Road, Suite 400
Deerfield, Illinois 60015
(Name and address of agent for service)
(847) 405-5500
(Telephone number, including area code, of agent for service)
Copy to:
William S. Kirsch, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C>
_______________________________________________________________________________________________________
| | | | Proposed maximum | Amount |
|Title of securities| Amount to be | Proposed maximum | aggregate offering | registration |
| to be registered | registered | offering price per share (1)| price (1) | fee (1) |
|_______________________________________________________________________________________________________|
| Class A Common | | | | |
| Stock, par value | | | | |
| $.0001 per share |2,000,000 shares| $6.8125 | $13,625,000 | $4,129 |
|_______________________________________________________________________________________________________|
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee based
upon the average of the high and low prices reported for the shares on
the American Stock Exchange on November 5, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing information specified in Part I (plan information
and registrant information) will be sent or given to each director, officer and
key employee of Gaylord Container Corporation (the "Company" or the
"Registrant") selected to participate in the Gaylord Container Corporation 1997
Long-Term Equity Incentive Plan (the "Plan") as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended (the "Securities Act"). Such
documents need not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other
documents required to be delivered to eligible employees pursuant to Rule
428(b) or additional information about the Plan are available without charge by
contacting:
Gaylord Container Corporation
Secretary
500 Lake Cook Road, Suite 400
Deerfield, Illinois 60015
Telephone Number: (847) 405-5500
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated in and made a part of this Registration Statement by reference, as
of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
periods ended December 31, 1996, March 31, 1997 and June 30, 1997.
(c) The Company's Current Report on Form 8-K dated June 6, 1997 and
filed June 19, 1997.
(d) The description of the Registrant's common stock under the caption
"DESCRIPTION OF CAPITAL STOCK - Common Stock" contained in
Registrant's Registration Statement on Form S-1 (File No. 33-17898),
that was filed with the Commission on October 13, 1987 pursuant to
the Securities Act, including any amendments or reports filed for
the purpose of updating such description.
All reports and other documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement prior to the filing of a post-effective
2
<PAGE>
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any persons who are,
or are threatened to be made, parties 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 such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests and, with respect
to any criminal action or proceeding, had no reasonable cause to believe that
his conduct was illegal. A Delaware corporation may indemnify any persons who
are, or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of the
fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorney's fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests except that no indemnification is permitted without judicial approval
if the officer or director is adjudged to be liable to the corporation. Where
an officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify him against the
expenses which such officer or director has actually and reasonably incurred.
Article IX of the Certificate of Incorporation, as amended and restated,
of the Company provides that no director of the corporation shall be liable to
the corporation or its stockholders for monetary damages arising from a breach
of fiduciary duty owed to the corporation or its stockholders to the fullest
extent permitted by the Delaware General Corporation Law.
Article IX of the Certificate of Incorporation, as amended and restated,
further provides that the Company shall indemnify and hold harmless, to the
fullest extent authorized by the Delaware General Corporation Law, each person
who was or is made a party or is threatened to be made a party to or is
otherwise involved (including involvement as a witness) in any action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he or she is or was a director or officer of the corporation,
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee
benefit plan, whether the basis of such proceeding is alleged action in an
3
<PAGE>
official capacity as a director or officer or in any other capacity while
serving as a director or officer, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as
to an indemnitee who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided below with respect
to proceedings to enforce rights to indemnification, the corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification is a
contract right and includes the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (advancement of expenses); provided, however, that, if and to the
extent that the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the corporation of an undertaking by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal than such indemnitee is not entitled to be indemnified
for such expenses.
Article IX of the Certificate of Incorporation, as amended and restated,
further provides that any person serving as a director, officer, employee or
agent of another corporation, partnership, joint venture or other enterprise, at
least 50% of whose equity interests are owned by the corporation, shall be
conclusively presumed to be serving in such capacity at the request of the
Company and, hence, subject to indemnification by the Company.
Article IX of the Certificate of Incorporation, as amended and restated,
further provides that persons who after the date of the adoption of Article IX
become or remain directors or officers of the corporation or who, while a
director or officer of the corporation, become or remain a director, officer,
employee or agent of a subsidiary, shall be conclusively presumed to have
relied on the rights to indemnity, advancement of expenses and other rights
contained in Article IX in entering into or continuing such service. The
rights to indemnification and to the advancement of expenses conferred in
Article IX shall apply to claims made against a indemnitee arising out of acts
or omissions which occurred or occur both prior and subsequent to the adoption
hereof. The rights to indemnification and to the advancement of expenses
conferred in Article IX shall not be exclusive of any other right which any
person may have or hereafter acquire under the Amended and Restated Certificate
of Incorporation or under any statute, bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
Section 145 further authorizes a corporation to 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 or
enterprise, against any liability asserted against him and incurred by him in
any such capacity, arising out of his status as such, whether or not the
corporation would otherwise have the power to indemnify him under Section 145.
Article IX of the Certificate of Incorporation, as amended and restated,
further provides that the corporation may maintain insurance, at its own
expense, to protect itself, any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such
expenses, liability or loss under the Delaware General Corporation Law.
All of the directors and officers of the Company are covered by insurance
policies maintained and held in effect by such corporation against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
4
<PAGE>
Item 8. Exhibits.
The Exhibits to this Registration Statement are listed in the Exhibit
Index of this Registration Statement, which Exhibit Index is incorporated
herein by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this item do not
apply if the Registration Statement is on Form S-3 or Form S-8 , and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered 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 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 Commission such
indemnification is against public policy as
5
<PAGE>
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 directors, 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.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Corporation 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 Deerfield, State of Illinois, on November 6,
1997.
GAYLORD CONTAINER CORPORATION
By: /s/ Marvin A. Pomerantz
------------------------------------
Marvin A. Pomerantz
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated
Signature Capacity Date
- --------------------------- ---------------------------- ----------------
/s/ Marvin A. Pomerantz Chairman, Chief Executive November 6, 1997
- --------------------------- Officer and Director
Marvin A. Pomerantz (Prinicpal Executive Officer
/s/ Daniel P. Casey Executive Vice President November 6, 1997
- --------------------------- (Principal Financial Officer
Daniel P. Casey
/s/ Jeffrey B. Park Vice-President Corporate November 6, 1997
- --------------------------- Controller (Principal
Jeffrey B. Park Accounting Officer)
*
- ---------------------------
Mary Sue Coleman Director November 6, 1997
*
- ---------------------------
Harve A. Ferrill Director November 6, 1997
*
- ---------------------------
John E. Goodenow Director November 6, 1997
*
- ---------------------------
David B. Hawkins Director November 6, 1997
*
- ---------------------------
John Hawkinson Director November 6, 1997
*
- ---------------------------
Warren J. Hayford Director November 6, 1997
*
- ---------------------------
Charles S. Johnson Director November 6, 1997
*
- ---------------------------
Richard S. Levitt Director November 6, 1997
*
- ---------------------------
Ralph L. MacDonald Jr. Director November 6, 1997
7
<PAGE>
*
- ---------------------------
Thomas H. Stoner Director November 6, 1997
* The undersigned, by signing his name hereto, does sign and execute this
Registration Statement on Form S-8 on behalf of the above named officers and
directors of the Company pursuant to the Power of Attorney executed by such
officers and directors and filed with the Securities and Exchange Commission.
/s/ Daniel P. Casey
- ---------------------------
Daniel P. Casey
Attorney-in-fact
8
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
Number Description of Document Numbered Page
- ------- -------------------------------------------------------- -------------
4.1 Amended and Restated Certificate of Incorporation of
the Company, as of July 27, 1995, incorporated by
reference to Exhibit 3.1 of the Company's Quarterly
Report on Form 10-Q (No. 1-9915) for the quarter
ended June 30, 1995 filed under the Securities
Exchange Act of 1934, as amended (the June 30, 1995
Form 10-Q)
4.2 Amended and Restated Bylaws of the Company, as
amended, incorporated by reference to Exhibit 3.1 of
the Company's Current Report on Form 8-K filed on
July 5, 1995 under the Securities Act of 1934, as
amended (the July 5, 1995 Form 8-K)
4.3 Specimen Certificate for the Class A Common Stock,
par value $.0001 per share, of the Company,
incorporated by reference to Exhibit 4.5 of the
Company's Current Report on Form 8-K filed on
October 30, 1992 under the Securities Exchange Act
of 1934, as amended (October 30, 1992 Form 8-K)
4.4 Gaylord Container Corporation 1997 Long-Term Equity
Incentive Plan, incorporated by reference to Exhibit
A to the Definitive Proxy Statement filed December
24, 1996
5.1 Opinion of Kirkland & Ellis
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1)
24.1 Power of Attorney
9
<PAGE>
Exhibit 5.1
-----------
[Kirkland & Ellis Letterhead]
To Call Writer Direct:
312 861-2000
November 7, 1997
Gaylord Container Corporation
500 Lake Cook Road, Suite 400
Deerfield, Illinois 60015
Re: Gaylord Container Corporation
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Gaylord Container Corporation
(the "Company") in connection with the proposed registration by the Company of
up to 2,000,000 shares of the Company's Class A Common Stock, par value $.0001
per share (the "Class A Common Stock"), which are issuable upon exercise of
stock options granted under the Gaylord Container Corporation 1997 Long-Term
Equity Incentive Plan (the "Incentive Plan"), pursuant to a Registration
Statement on Form S-8 filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred
to as the "Registration Statement").
The opinions contained in this letter (herein called "our opinions")
are based exclusively upon the General Corporation Law of the State of
Delaware, as now constituted. We express no opinion as to the applicability
of, compliance with, or effect of any other law or governmental requirement
with respect to the Company. For purposes of our opinions we have assumed
without independent investigation that factual information supplied to us for
purposes of our opinions is complete and accurate.
Based upon and subject to the foregoing, we hereby advise you that
in our opinion:
1. The Company is a corporation existing and in good standing
under the laws of the State of Delaware.
2. Each share of Class A Common Stock registered under the
Registration Statement and issuable under the Incentive Plan when issued
as authorized by the Company upon payment of the consideration to be paid
therefor (in an amount at least equal to the par value of the related
shares), will be validly issued, fully paid and non-assessable:
<PAGE>
For purposes of this letter we have relied without any independent
verification upon (i) information contained in one or more certificates
provided by the Delaware Secretary of State and (ii) factual information
supplied to us by the Company. We have assumed without investigation that
there has been no relevant change or development between the dates as of which
the information cited in the preceding sentence was given and the date of this
letter and that the information upon which we have relied is accurate and does
not omit disclosures necessary to prevent such information from being
misleading. For purposes of each opinion in paragraph 1, we have relied
exclusively upon a certificate issued by the Delaware Secretary of State, and
such opinion is not intended to provide any conclusion or assurance beyond that
conveyed by that certificate.
We hereby consent to the filing of this opinion with the Commission
as Exhibit 5.1 to the Registration Statement. We also consent to the reference
to our firm under the heading "Legal Matters" in the Registration Statement.
In giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the
securities or "Blue Sky" laws of the various states to the issuance and sale of
each share of Class A Common Stock registered under the Registration Statement.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein.
We assume no obligation to revise or supplement this opinion should the present
laws of the State of Delaware be changed by legislative action, judicial
decision or otherwise.
Sincerely,
/s/ Kirkland & Ellis
--------------------
Kirkland & Ellis
<PAGE>
Exhibit 23.1
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Gaylord Container Corporation on Form S-8 of our report dated
November 4, 1996, included in the Annual Report on Form 10-K of Gaylord
Container Corporation for the year ended September 30, 1996.
/s/ Deloitte & Touche LLP
- -------------------------
Deloitte & Touche LLP
Chicago, Illinois
November 6, 1997
<PAGE>
Exhibit 24.1
------------
Power of Attorney
Each of the undersigned, being a director or officer, or both, of
GAYLORD CONTAINER CORPORATION, a Delaware corporation (the "Corporation"),
does hereby constitute and appoint each of Marvin A. Pomerantz and Daniel
P. Casey as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8 for the
Corporation's 1997 Long-Term Equity Incentive Plan and to file same, together
with all exhibits thereto and other attachments and documents in connection
therewith, with the Securities and Exchange Commission, the American Stock
Exchange and any other regulatory authority, and to sign, file or deliver such
further documents and to take such further actions in connection therewith as
each of the undersigned might or could do in person and as each such attorney
and agent deems necessary or desirable; and each of the undersigned does hereby
fully ratify and confirm all that said attorneys and agents, or any of them,
or the substiute of any of them, shall do or cause to be done by virtue hereof.
Signature Title
- ------------------------------- --------------------------------------
/s/ Marvin A. Pomerantz
_______________________________ Chairman, Chief Executive Officer
Marvin A. Pomerantz and Director
/s/ Daniel P. Casey
_______________________________ Executive Vice President
Daniel P. Casey (Principal Financial Officer)
/s/ Jeffrey B. Park
_______________________________ Vice President-Corporate Controller
Jeffrey B. Park (Principal Accounting Officer)
/s/ Mary Sue Coleman
_______________________________ Director
Mary Sue Coleman
/s/ Harve A. Ferrill
_______________________________ Director
Harve A. Ferrill
/s/ John E. Goodenow
_______________________________ Director
John E. Goodenow
/s/ David B. Hawkins
_______________________________ Director
David B. Hawkins
/s/ John Hawkinson
_______________________________ Director
John Hawkinson
/s/ Warren J. Hayford
_______________________________ Director
Warren J. Hayford
/s/ Charles S. Johnson
_______________________________ Director
Charles S. Johnson
/s/ Richard S. Levitt
_______________________________ Director
Richard S. Levitt
/s/ Ralph L, MacDonald, Jr.
_______________________________ Director
Ralph L. MacDonald, Jr.
/s/ Thomas H. Stoner
_______________________________ Director
Thomas H. Stoner
<PAGE>
