As filed with the Securities and Exchange Commission on December 20,1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ULTRA PAC, INC.
(Exact Name of Registrant as Specified in its Charter)
MINNESOTA 3089 41-1581031
(State or Other Jurisdiction of (Primary Standard Industrial (IRS Employer
Incorporation or Organization) Classification Code Number) Identification No.)
21925 Industrial Boulevard
Rogers, Minnesota 55374
(612) 428-8340
(Address of Principal Executive Offices)
Ultra Pac, Inc. 1996 Second Employee Stock Grant Program
(Full Title of the Plan)
Calvin S. Krupa
21925 Industrial Boulevard
Rogers, Minnesota 55374
(612) 428-8340
(Name, Address, and Telephone Number of Agent for Service)
Copies to:
Michael W. Schley, Esq.
Larkin, Hoffman, Daly & Lindgren, Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Bloomington, Minnesota 55431
(612) 835-3800
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
(SEE NEXT PAGE)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
Amount to be Proposed Maximum Proposed Maximum Aggregate Amount of
Title of Securities to be Registered Registered Offering Price Per Share Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock (no par value) 14,000 $3.6875(1) $51,625 $100.00
- ----------------------------------------------------------------------------------------------------------------------------
Total 14,000 $3.6875(1) $51,625 $100.00
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Plan contemplates the issuance of 50 shares to each eligible employee
for no separate consideration. Both for determining amounts of taxable
income and for determining the registration fee payable, such shares are
deemed to have a price equal to 100% of "fair market value" at the date of
grant. Fair market value is estimated, solely for the purpose of
calculating the registration fee, as the closing bid price of Ultra Pac,
Inc. (the "Company") Common Stock as reported by the Nasdaq National Market
System on December 13, 1996.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company incorporates by reference into the registration statement the
documents listed below:
(a) The Company's latest annual report on Form 10-K or: (i) the
Company's latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), that contains
audited financial statements for the Company's latest fiscal year for
which such statements have been filed or (ii) the Company's effective
registration statement on Form 10 or Form 10-SB filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), containing audited
financial statement for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the annual
report or prospectus referred to in (a) above.
(c) The description of the Company's Common Stock which is
contained in the Company's Registration Statement on Form S-18
(Registration No. 33-46937) filed under the Securities Act, including any
amendment or report filed under the Exchange Act for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained in 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 or is
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. INTEREST OF NAMED EXPERTS AND COUNSEL.
(a) Not applicable.
(b) Certain legal matters in connection with this registration
statement will be passed upon by Larkin, Hoffman, Daly & Lindgren, Ltd.,
as counsel for the Company. Frank I. Harvey, who is a shareholder of the
law firm, serves as a director of the Company. Mr. Harvey beneficially
owned, as of December 13, 1996, 10,610 shares of the Company's Common
Stock and options to purchase 6,500 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes requires the Company to
indemnify a person made or threatened to be made a party to a proceeding by
reason of the former or present official capacity of the person with respect to
the Company, against judgments, penalties, fines, including reasonable expenses,
if such person: (1) has not been indemnified by another organization or employee
benefit plan for the same judgments, penalties, fines, including without
limitation, excise taxes assessed against the person with respect to an employee
benefit plan, settlements, and reasonable expenses, including attorneys' fees
and disbursements, incurred by the person in connection with the proceeding with
respect to the same acts or omissions; (2) acted in good faith; (3) received no
improper personal benefit, and statutory procedure has been followed in the case
of any conflict of interest by a director; (4) in the case of a criminal
proceeding, had no reasonable cause to believe the conduct was unlawful; and (5)
in the case of acts or omissions occurring in the person's performance in the
official capacity of director or, for a person not a director, in the official
capacity of officer, committee member, employee or agent, reasonably believed
that the conduct was in the best interests of the Company, or, in the case of
performance by a director, officer, employee or agent of the Company as a
director, officer, partner, trustee, employee or agent of another organization
or employee benefit plan, reasonably believed that the conduct was not opposed
to the best interests of the Company. In addition, Section 302A.521, subd. 3,
requires payment by the Company, upon written request, of reasonable expenses in
advance of final disposition in certain instances. A decision as to required
indemnification shall be made by a disinterested majority of the Board of
Directors present at a meeting at which a disinterested quorum is present, or by
a designated committee of the Board of Directors, by special legal counsel, by
the shareholders or by a court.
As permitted by the Minnesota Business Corporation Act, the Restated
Articles of Incorporation of the Company eliminate the liability of the
directors of the Company for monetary damages arising from any breach of
fiduciary duties as a member of the Company's Board of Directors (except as
expressly prohibited by Minnesota Statutes, Section 302A.251, subd. 4).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 (Excerpt from) minutes of the Board of Directors of the
Registrant, authorizing the issuance of shares to employees.
5.1 Opinion of Larkin, Hoffman, Daly & Lindgren, Ltd., as to the
legality of the securities (included as page II-5).
23.1 Consent of Divine, Scherzer & Brody, Ltd. (included as page II-7).
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (see signature page).
ITEM 9. UNDERTAKINGS.
1. The undersigned registrant hereby undertakes:
(a) 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 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.
(b) 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.
(c) 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.
2. 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement 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. 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 provision, 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 Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Rogers, State of Minnesota, on December 18, 1996.
ULTRA PAC, INC.
By: /s/ Calvin S. Krupa
------------------------------------------
Calvin S. Krupa
Its: President and Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of Ultra Pac, Inc., whose signatures appear
below, hereby constitute and appoint Calvin S. Krupa and Frank I. Harvey, and
each of them (with full power to each of them to act alone) their true and
lawful attorneys-in-fact to sign and execute on behalf of the undersigned any
amendment or amendments to this registration statement of Ultra Pac, Inc., and
each of the undersigned does hereby ratify and confirm all that said attorneys
shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Calvin S. Krupa President, Chief Executive 12/18/96
- ------------------- Officer and Director
Calvin S. Krupa
/s/ Brad C. Yopp Chief Financial Officer (Principal 12/18/96
- ------------------- Financial and Accounting Officer)
Brad C. Yopp
/s/ James A. Thole Secretary and Director 12/18/96
- -------------------
James A. Thole
- ------------------- Director
John F. DeBoer
/s/ Thomas F. Rains Director 12/18/96
- -------------------
Thomas F. Rains
/s/ Frank I. Harvey Director 12/17/96
- -------------------
Frank I. Harvey
ULTRA PAC, INC.
EXCERPT FROM BOARD OF DIRECTORS MINUTES
DECEMBER 16, 1996
WHEREAS, the Company desires to reward its employees in exchange for exemplary
services to the Company;
NOW, THEREFORE, IT IS HEREBY
RESOLVED that the President and Secretary are authorized and directed to issue
to each of the persons employed by the Company as of the close of business on
December 13, 1996, as set forth more fully on Exhibit A hereto, fifty (50)
shares of the Company's common stock in recognition of their services to the
Company.
RESOLVED FURTHER, that the Company is hereby authorized to file a Registration
Statement on Form S-8 with the Securities and Exchange Commission in such form
and containing such information as determined by the officers of the Company,
including any amendments thereto as may be necessary.
Exhibit 4.1
December 19, 1996
Ultra Pac, Inc.
21925 Industrial Boulevard
Rogers, Minnesota 55374
Re: Ultra Pac, Inc. (the "Company")
Registration Statement on Form S-8
1996 Second Employee Stock Grant Program
Ladies and Gentlemen:
We have examined: (a) the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the issuance by you of 14,000
shares of the Company's Common Stock, no par value (the "Common Stock") in the
manner set forth in the Registration Statement; (b) the Company's Restated
Articles of Incorporation and Bylaws, both as amended to date; and (c) the
Company's corporate proceedings relative to your organization and to the
issuance of the Common Stock.
In addition to the examination outlined above, we have reviewed such other
proceedings, documents, and records and have ascertained or verified such
additional facts as we deem necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, we are of the opinion that:
1. Ultra Pac, Inc. has been legally incorporated and is validly
existing under the laws of the State of Minnesota.
2. The Common Stock being issued by you as contemplated in the
Registration Statement will, when issued, be validly issued,
fully paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit hereby that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Sincerely,
/s/ Larkin, Hoffman, Daly & Lindgren, Ltd.
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
Exhibit 5.1
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 13, 1996 (except for notes E and H, as to
which the date is April 26, 1996) accompanying the financial statements and our
report dated April 26, 1996 accompanying the schedule of Ultra Pac, Inc.
included in the Annual Report on Form 10-K for the year ended January 31, 1996,
which are incorporated by reference in this Registration Statement. We consent
to the incorporation by reference in the Registration Statement of the
aforementioned reports.
DIVINE, SCHERZER & BRODY, LTD.
St.Paul, Minnesota
December 2,1996
