As filed with the Securities and Exchange Commission on May 10,1996
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. 1991 Stock Option Plan
(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. [X]
CALCULATION OF REGISTRATION FEE
(SEE NEXT PAGE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount to be Proposed Maximum Proposed Maximum Aggregate Amount of
Title of Securities to be Registered Registered (1) Offering Price Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common stock (no par value) 3000 $12.69 $38,070 $13.13
Common stock (no par value) 3000 $11.50 $34,500 $11.90
Common stock (no par value) 3000 $10.875 $32,625 $11.25
Common stock (no par value) 2000 $10.25 $20,500 $7.07
Common stock (no par value) 3000 $9.125 $27,375 $9.44
Common stock (no par value) 2000 $8.75 $17,500 $6.03
Common stock (no par value) 3000 $8.00 $24,000 $8.28
Common stock (no par value) 8000 $7.50 $60,000 $20.69
Common stock (no par value) 18000 $7.375 $132,750 $45.77
Common stock (no par value) 3000 $7.25 $21,750 $7.50
Common stock (no par value) 12500 $7.00 $87,500 $30.17
Common stock (no par value) 5000 $6.00 $30,000 $10.34
Common stock (no par value) 34500 $3.0625(2) $105,656 $36.43
Total 100,000 n/a $632,226 $218.01
</TABLE>
(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options for shares of Common Stock, or pursuant
to the antidilution provisions of the Ultra Pac, Inc. 1991 Stock Option
Plan (the "Plan").
(2) The Plan authorizes the issuance of both incentive stock options under
Section 422 of the Internal Revenue Code and nonstatutory stock
options. For purposes of calculating the registration fee, it is
assumed that all options not yet granted are incentive stock options
and accordingly are exercisable at 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 May 3, 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 April 16, 1996, 4,610 shares of the Company's
Common Stock and options to purchase 5,500 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. This registration statement relates to the issuance of
shares upon the exercise of options. The grants of such options did not
constitute "sales" under the Securities Act of 1933, as amended.
ITEM 8. EXHIBITS.
4.1 Ultra Pac, Inc. 1991 Stock Option Plan.
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 May 9, 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
Calvin S. Krupa Officer and Director
/s/ Brad C. Yopp Chief Financial Officer (Principal
Brad C. Yopp Financial and Accounting Officer)
/s/ James A. Thole Secretary and Director
James A. Thole
/s/ John F. DeBoer Director
John F. DeBoer
/s/ Michael J. McGlynn Director
Michael J. McGlynn
/s/ Frank I. Harvey Director
Frank I. Harvey
ULTRA PAC, INC.
1991 STOCK OPTION PLAN
1.) Purposes. The principal purposes of the Ultra Pac, Inc. (the
"Corporation") 1991 Stock Option Plan (the "Plan") are (a) to improve individual
performance by providing long-term incentives and rewards to employees,
directors and consultants of the Corporation, (b) to assist the Corporation in
attracting, retaining and motivating employees and consultants with experience
and ability, and (c) to associate the interests of such persons with those of
the Corporation's shareholders.
Options granted under this Plan may either be Incentive Stock Options
qualified under Section 422A of the Code or Non-Qualified Options.
2.) Definitions. For purposes of this Plan, the following terms shall
have the meanings indicated below:
(01) "Capital Stock" - any of the Corporation's authorized but unissued
shares of voting common stock, no par value per share.
(02) "Code" - the Internal Revenue Code of 1986, as amended from time
to time.
(03) "Corporation" - Ultra Pac, Inc., a Minnesota corporation and any
of its Subsidiaries.
(04) "Exchange Act" - the Securities Exchange Act of 1934, as amended.
(05) "Fair Market Value" - the price per share determined as follows:
(a) if the security is listed for trading on one or more national
securities exchanges (including the NASDAQ National Market System), the
reported last sales price on such principal exchange on the date in
question, or if such security shall not have been traded on such
principal exchange on such date, the reported last sales price on such
principal exchange on the first day prior thereto on which such
security was so traded; or (b) if the security is not listed for
trading on a national securities exchange (including the NASDAQ
National Market System) but is traded in the over-the-counter market,
the mean of the highest and lowest bid prices for such security on the
date in question, or if there are no such bid prices for such security
on such date, the mean of the highest and lowest bid prices on the
first day prior thereto on which such prices existed; or (c) if neither
(a) nor (b) is applicable, by any means deemed fair and reasonable by
the Committee (as defined below), which determination shall be final
and binding on all parties.
(06) "Incentive Stock Option" - an option defined in Section 422A of
the Code to purchase shares of the Capital Stock of the Corporation.
(07) "Non-Qualified Stock Option" - an option, not intended to qualify
as an Incentive Stock Option as defined in Section 422A of the Code, to
purchase Capital Stock of the Corporation.
(08) "Option" - the term shall refer to either an Incentive Stock
Option or a Non-Qualified Stock Option.
(09) "Option Agreement" - a written agreement pursuant to which the
Corporation grants an option to an Optionee and sets the terms and
conditions of the option.
(10) "Option Date" - the date upon which an Option Agreement for an
option granted pursuant to this Plan is duly executed by or on behalf
of the Corporation.
(11) "Option Stock" - the voting common stock of the Corporation, no
par value per share (subject to adjustment as described in Section 8)
reserved for options pursuant to this Plan, or any other class of stock
of the Corporation which may be substituted therefor by exchange, stock
split or otherwise.
(12) "Optionee" - an officer, management level employee, other
employee, and consultant of the Corporation or one of its Subsidiaries
to whom an option has been granted under the Plan.
(13) "Plan" - this 1991 Stock Option Plan as amended hereafter from
time to time.
(14) A "Subsidiary" - any corporation in an unbroken chain of
corporations beginning with the Corporation, if, at the time of
granting the option, each of the corporations other than the last
corporation in the chain owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one
of the other corporations in such chain. The term shall include any
subsidiaries which become such after adoption of this Plan.
3.) Options Available Under Plan. The Corporation's authorized Capital
Stock in an amount equal to 100,000 shares is hereby made available, and shall
be reserved for issuance under this Plan. The aggregate number of shares
available under this Plan shall be subject to adjustment on the occurrence of
any of the events and in the manner set forth in Section 8. Except as provided
in Section 8, in no event shall the number of shares reserved be reduced below
the number of shares issuable upon exercise of outstanding Options. If an Option
shall expire or terminate for any reason without having been exercised in full,
the unpurchased shares, shall (unless the Plan shall have been terminated)
become available for other Options under the Plan.
4.) Administration. The Plan shall be administered by a committee
consisting solely of not less than two members of the Board of Directors of the
Corporation (the "Committee") who are "disinterested" within the meaning of and
to the extent required by the General Rules and Regulations promulgated pursuant
to Section 16 of the Exchange Act (Section 16 Regulations). To the extent
permitted by the Section 16 Regulations, the Board of Directors may serve as the
Committee.
The Corporation shall grant Options pursuant to the Plan upon
determinations of the Committee as to which of the eligible persons shall be
granted Options, the number of shares to be Optioned and the term during which
any such Options may be exercised. The Committee may from time to time adopt
rules and regulations for carrying out the Plan and interpretations and
constructions of any provision of the Plan, which shall be final and conclusive.
5.) Eligibility for Incentive Stock Options. Incentive Stock Options
may only be granted to an officer, management level employee or other employee
of the Corporation or any of its Subsidiaries. A director of the Corporation who
is not also an employee shall not be eligible to receive an Incentive Stock
Option.
In selecting the employees to whom Incentive Stock Options shall be
granted, as well as determining the number of shares subject to each Option, the
Committee shall take into consideration such factors as it deems relevant in
connection with accomplishing the purposes of the Plan. For any calendar year,
the aggregate Fair Market Value (determined at the Option Date) of the stock
with respect to which any Incentive Stock Options are exercisable for the first
time by any individual employee (under all Incentive Stock Option plans of the
Corporation and all Subsidiary corporations) shall not exceed $100,000. Subject
to the provisions of Section 3, an employee who has been granted an Option may,
if he or she is otherwise eligible, be granted an additional Option or Options
if the Committee shall so determine.
No Incentive Stock Option may be granted under this Plan later than the
expiration of ten (10) years from the effective date.
6.) Eligibility for Non-Qualified Options. Non-Qualified Options may be
granted only to an officer, director, management level employee, other employee
or consultant of the Corporation or a subsidiary. No further restrictions are
placed on the Committee in determining eligibility for granting Non-Qualified
Options.
7.) Terms and Conditions of Options. Whenever the Committee shall
designate an Optionee, it shall communicate to the Secretary of the Corporation
the name of the Optionee, the number of shares to be Optioned and such other
terms and conditions as it shall determine, not inconsistent with the provisions
of this Plan. The President or other officer of the Corporation shall then enter
into an Option Agreement with the Optionee, complying with and subject to the
following terms and conditions and setting forth such other terms and conditions
of the Option as determined by the Committee:
(01) Number of Shares and Option Price. The Option Agreement shall
state the total number of shares to which it pertains. The price of
Option Stock for an Incentive Stock Option, shall be not less than one
hundred percent (100%) of the Fair Market Value of the Option Stock at
the Option Date. The price of the Option Stock for a Non-Qualified
Stock Option shall be determined by the Committee and may be less than
the Fair Market Value at the Option Date. In the event an Incentive
Stock Option is granted to an employee, who, at the Option Date, owns
more than ten percent (10%) of the voting power of all classes of the
Corporation's stock then outstanding, the price of the shares of common
stock which will be covered by such Option shall be not less than one
hundred ten percent (110%) of the Fair Market Value of the common stock
at the Option Date. The Option price shall be subject to adjustment as
provided in Section 8 hereof.
(02) Time and Manner of Exercise of Option. Except as otherwise
determined from time to time by the Committee, Incentive Stock Options
granted under the Plan shall be exercisable as follows:
(a) After six months following the date of a grant, the option may
be exercised as to thirty-three and one-third percent (33
1/3%) of the shares covered thereby;
(b) During each twelve (12) month period thereafter from the date
on which the option was granted, on such date designated by
the Committee, the option shall become exercisable as to an
additional thirty-three and one-third percent (33 1/3%) of the
shares covered thereby;
(c) No option may be exercised after ten (10) years from the date
on which the option was granted; provided that no incentive
stock option granted to a 10% Holder may be exercised after
five (5) years from the date on which it was granted; and
(d) Notwithstanding subparagraphs (a) and (b), or any vesting
schedule set forth in a stock option agreement under the Plan,
all options granted under the Plan shall be exercisable
immediately upon any "change of control" of the Corporation.
For purposes of this subparagraph (d) a change in control of
the Corporation shall be deemed to have occurred upon:
(i) The Corporation entering into an agreement to merge
or consolidate or to consummate a combination or
majority share acquisition arrangement in which its
shareholders immediately prior to any such agreement
or arrangement would own less than fifty percent
(50%) of the voting power of the surviving or new
corporation;
(ii) The Corporation selling or disposing of substantially
all of its assets other than to a subsidiary; or
(iii) The election of a new majority of the Corporation's
Board of Directors consisting of person not nominated
by the Board of Directors.
(03) Termination of Employment, Except Death or Disability. In the
event that an Optionee shall cease to be employed by the Corporation
for any reason other than his or her death, disability or "for cause",
subject to the condition that no Incentive Stock Option shall be
exercisable after the expiration of ten (10) years from the date it is
granted, such Optionee shall have the right to exercise any outstanding
Options at any time within three (3) months after the termination of
the employee. In the event that Optionee shall be terminated "for
cause" including but not limited to (i) his willful breach of any
agreement entered into with the Corporation, (ii) misappropriation of
the Corporation's property, fraud, embezzlement, other acts of
dishonesty against the Corporation, or (iii) conviction of any felony
or crime involving moral turpitude, the Option may be terminated as of
the date of the Optionee's termination of employment.
(04) Leaves of Absence. The Optionee may not exercise any part of any
Incentive Stock Option while the Optionee is on leave of absence.
(05) Death or Disability of Optionee. If the Optionee shall die or
become disabled within the definition of Section 105(d)(4) of the Code,
(i) while in the employ of the Corporation or any Subsidiary, or (ii)
within a period of three (3) months after the termination of his or her
employment with the Corporation or any Subsidiary as provided in
paragraph (03) of this section, and in either case shall not have fully
exercised his or her Options, any Options granted pursuant to the Plan
shall be exercisable only within six (6) months following his or her
death or date of disability or until the earlier originally stated
expiration thereof. In the case of death, such Option shall be
exercised pursuant to subparagraph (07) of this Section by the person
or persons to whom the Optionee's rights under the Option shall pass by
the Optionee's will or by the laws of descent and distribution, and
only to the extent that such Options were exercisable at the time of
his or her death.
(06) Transfer of Option. Each Option granted hereunder shall, by its
terms, be not transferable by the Optionee other than by will or by the
laws of descent and distribution, and shall be, during the Optionee's
lifetime, exercisable only by the Optionee or Optionee's guardian or
legal representative. Except as permitted by the preceding sentence,
each Option granted under the Plan and the rights and privileges
thereby conferred shall not be transferred, assigned or pledged in any
way (whether by operation of law or otherwise), and shall not be
subject to execution, attachment or similar process. Upon any attempt
to so transfer, assign, pledge, or otherwise dispose of the Option, or
of any right or privilege conferred thereby, contrary to the provisions
of the Option or the Plan, or upon levy of any attachment or similar
process upon such rights and privileges, the Option, and such rights
and privileges, shall immediately become null and void.
(07) Manner of Exercise of Options. An Option may be exercised, in
whole or in part, at such time or times and with respect to such shares
which have accrued and are in effect. Such Option shall be exercisable
only by (i) written notice to the Corporation of intent to exercise the
Option with respect to a specified number of shares of stock; (ii)
tendering the original Option Agreement to the Corporation; and (iii)
payment to the Corporation of the amount of the Option purchase price
for the number of shares of stock with respect to which the Option is
then exercised. Payment of the Option purchase price may be made in
cash (including certified check, bank draft or postal or express money
order), by delivery of shares of common stock of the Corporation with a
Fair Market Value equal to the Option purchase price, by a combination
of cash and such shares, whose value together with such cash shall
equal the Option purchase price or by any other method of payment which
the Committee shall approve and, in the case of an Incentive Stock
Option, which shall not be inconsistent with the provisions of Section
422A of the Code; provided, however, that there shall be no such
exercise at any one time as to fewer than ten (10) shares or all of the
remaining shares then purchasable by the Optionee or person exercising
the Option. When shares of stock are issued to the Optionee pursuant to
the exercise of an Option, the fact of such issuance shall be noted on
the Option Agreement by the Corporation before the Agreement is
returned to the Optionee. When all shares of Optioned stock covered by
the Option Agreement have been issued to the Optionee, or the Option
shall expire, the Option Agreement shall be cancelled and retained by
the Corporation.
(08) Delivery of Certificate. Except where shares are held for unpaid
withholding taxes, between fifteen (15) and thirty (30) days after
receipt of the written notice and payment specified above, the
Corporation shall deliver to the Optionee certificates for the number
of shares with respect to which the Option has been exercised, issued
in the Optionee's name; provided, however, that such delivery shall be
deemed effected for all purposes when the Corporation, or the stock
transfer agent for the Corporation, shall have deposited such
certificates in the United States mail, postage prepaid, addressed to
the Optionee and the address specified in the written notice of
exercise.
(09) Other Provisions. The Option Agreements under this Section shall
contain such other provisions as the Committee shall deem advisable.
8.) Adjustments. In the event that the outstanding shares of the common
stock of the Corporation are changed into or exchanged for a different number or
kind of shares or other securities of the Company or of another corporation by
reason of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares or dividends payable in
capital stock, appropriate adjustment shall be made in the number and kind of
shares as to which Options may be granted under the Plan and as to which
outstanding Options or portions thereof then unexercised shall be exercisable,
to the end that the proportionate interest of the participant shall be
maintained as before the occurrence of such event; such adjustment in
outstanding Options shall be made without change in the total price applicable
to the unexercised portion of such Options and with a corresponding adjustment
in the Option Price per share. No such adjustment shall be made which shall,
within the meaning of any applicable sections of the Code, constitute a
modification, extension or renewal of an Option or a grant of additional
benefits to a participant.
If the Corporation is a party to a merger, consolidation,
reorganization or similar corporate transaction and if, as a result of that
transaction, its shares of common stock are exchanged for (i) other securities
of the Corporation or (ii) securities of another corporation which has assumed
the outstanding options under the Plan or has substituted for such Options its
own Options, then each Optionee shall be entitled (subject to the conditions
stated herein or in such substituted Options, if any), in respect of that
Optionee's Options, to purchase that amount of such other securities of the
Corporation or of such other corporation as is sufficient to ensure that the
value of the Optionee's Options immediately before the corporate transaction is
equivalent to the value of such Options immediately after the transaction,
taking into account the Option Price of the Option before such transaction, the
fair market value per share of the common stock immediately before such
transaction and the fair market value immediately after the transaction, of the
securities then subject to that Option (or to the option substituted for that
Option, if any). Upon the happening of any such corporate transaction, the class
and aggregate number of shares subject to the Plan which have been heretofore or
may be hereafter granted under the Plan shall be appropriately adjusted to
reflect the events specified in this clause.
9.) Rights as Stockholder. An Optionee shall not, by reason of any
Option granted hereunder, have any right of a stockholder of the Corporation
with respect to the shares covered by his Option until such shares shall have
been issued to the Optionee.
10.) No Obligation to Exercise Option. The granting of an Option shall
impose no obligation upon the Optionee to exercise such Option. Neither shall
the Plan confer upon the Optionee any rights respecting continued employment nor
limit the Optionee's rights or the Corporation's rights to terminate such
employment.
11.) Withholding Taxes. Whenever under the Plan shares of Option Stock
are to be issued upon exercise of the Options granted hereunder and prior to the
delivery of any certificate or certificates for said shares by the Corporation,
the Corporation shall have the right to require the Optionee to remit to the
Corporation an amount sufficient to satisfy any federal and state withholding or
other employment taxes resulting from such exercise. In the event that
withholding taxes are not paid within five days after the date of exercise, to
the extent permitted by law the Corporation shall have the right, but not the
obligation, to cause such withholding taxes to be satisfied by reducing the
number of shares of stock deliverable or by offsetting such withholding taxes
against amounts otherwise due from the Corporation to the Optionee. If
withholding taxes are paid by reduction of the number of shares deliverable to
Optionee, such shares shall be valued at the Fair Market Value as of the fifth
business day following the date of exercise.
12.) Purchase for Investment; Rights of Holder on Subsequent
Registration. Unless the shares to be issued upon exercise of an Option granted
under the Plan have been effectively registered under the Securities Act of 1933
as now in force or hereafter amended (the "1933 Act"), the Corporation shall be
under no obligation to issue any shares covered by any Option unless the person
who exercises such Option, whether such exercise is in whole or in part, shall
give a written representation and undertaking to the Corporation which is
satisfactory in form and scope to counsel for the Corporation and upon which, in
the opinion of such counsel, the Corporation may reasonably rely, that he or she
is acquiring the shares issued to him or her pursuant to such exercise of the
Option for his or her own account as an investment and not with a view to, or
for sale in connection with, the distribution of any such shares, and that he or
she will make no transfer of the same except in compliance with any rules and
regulations in force at the time of such transfer under the 1933 Act, or any
other applicable law, and that if shares are issued without such registration a
legend to this effect may be endorsed on the securities so issued. In the event
that the Company shall, nevertheless, deem it necessary or desirable to register
under the 1933 Act or other applicable statutes any shares with respect to which
an Option shall have been exercised, or to qualify any such shares for exemption
from the 1933 Act or other applicable statutes, then the Corporation shall take
such action at its own expense and may require from each participant such
information in writing for use in any registration statement, prospectus,
preliminary prospectus or offering circular as is reasonably necessary for such
purpose and may require reasonable indemnity to the Company and its officers and
Directors from such holder against all losses, claims, damage and liabilities
arising from such use of the information so furnished and caused by any untrue
statement of any material fact required to be stated therein or necessary to
make the statement therein not misleading in light of the circumstances under
which they were made.
13.) Modification of Outstanding Options. The Committee may accelerate
the exercisability of an outstanding Option and may authorize modification of
any outstanding Option with the consent of the participant when and subject to
such conditions as are deemed to be in the best interests of the Corporation and
in accordance with the purposes of the Plan.
14.) Foreign Employees. Without amending the Plan, the Committee may
grant Options to eligible employees who are foreign nationals on such terms and
conditions different from those specified in this Plan as may in the judgment of
the Committee be necessary or desirable to foster and promote achievement of the
purposes of the Plan, and, in furtherance of such purposes the Committee may
make such modification, amendments, procedures, subplans and the like as may be
necessary or advisable to comply with provisions of laws in other countries in
which the Corporation operates or has employees.
15.) Approval of Shareholders. This Plan is expressly subject to
approval of holders of the majority of the outstanding shares of Common Stock of
the Corporation, and if it is not so approved on or before one (1) year after
the date of adoption of this Plan by the Board of Directors, the Plan shall not
come into effect and any Options granted pursuant to this Plan shall be deemed
cancelled.
16.) Liquidation. Upon the complete liquidation of the Corporation, any
unexercised Options theretofore granted under this Plan shall be deemed
cancelled, except as otherwise provided in Section 8 in connection with a
merger, consolidation or reorganization of the Corporation.
17.) Restrictions on Issuance of Shares. Notwithstanding the provisions
of Section 7, the Corporation may delay the issuance of shares covered by the
exercise of any Option and the delivery of a certificate for such shares until
one of the following conditions shall be satisfied:
(01) The shares with respect to which the Option has been exercised are
at the time of the issue of such shares effectively registered under
applicable Federal and state securities acts as now in force or
hereafter amended; or
(02) A no-action letter in respect of the issuance of such shares shall
have been obtained by the Corporation from the Securities and Exchange
Commission and any applicable state securities commissioner; or
(03) Counsel for the Corporation shall have given an opinion, which
opinion shall not be unreasonably conditioned or withheld, that such
shares are exempt from registration under applicable federal and state
securities acts as now in force or hereafter amended.
It is intended that all exercise of Options shall be effective, and the
Corporation shall use its best efforts to bring about compliance with the above
conditions within a reasonable time, except that the Corporation shall be under
no obligation to cause a registration statement or a post-effective amendment to
any registration statement to be prepared at its expense solely for the purpose
of covering the issue of shares in respect of which any option may be exercised.
18.) Termination and Amendment of the Plan. This Plan shall terminate
ten (10) years after May 13, 1991, the effective date of the Plan, or at such
earlier time as the Board of Directors shall determine. Any termination shall
not affect any Options then outstanding under the Plan.
The Board may make such modifications of the Plan as it shall deem
advisable, but may not, without further approval of the stockholders of the
Corporation, except as provided in Section 8 hereof, (a) increase the number of
shares reserved for Options under this Plan, (b) change the manner of
determining the Option price for Incentive Stock Options, (c) increase the
maximum term of the Options provided for herein, or (d) change the class of
persons eligible to receive Options under the Plan.
[LETTERHEAD OF: LARKIN, HOFFMAN, DALY & LINDGREN, LTD.]
May 9, 1996
Ultra Pac, Inc.
21925 Industrial Boulevard
Rogers, Minnesota 55374
Re: Ultra Pac, Inc. (the "Company")
Registration Statement on Form S-8
1991 Stock Option Plan
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 100,000
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 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.
/s/ Divine, Scherzer & Brody, Ltd.
St. Paul, Minnesota
April 26, 1996
