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. 1996 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
<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 (2) Registration Fee
<S> <C> <C> <C> <C>
Common stock (no par value) 75,000 $2.9375 $220,313 $75.97
Common stock (no par value) 125,000 $3.0625 $382,813 $132.00
Total 200,000 n/a $603,126 $207.97
</TABLE>
(see footnotes on next page)
(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. 1996 Stock Option
Plan (the "Plan").
(2) The Plan authorizes the issuance of nonstatutory stock options. For
purposes of calculating the registration fee, it is assumed that all
not yet granted options 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. 1996 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.
1996 STOCK OPTION PLAN
1.) Purposes. The principal purposes of the Ultra Pac, Inc. (the
"Company") 1996 Stock Option Plan (the "Plan") are (a) to improve individual
performance by providing long-term incentives and rewards to employees and
consultants of the Company, (b) to assist the Company 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 Company's
shareholders.
Options granted under this Plan are Non-Qualified Options.
This Plan is separate from the Company's 1991 Stock Option Plan and the
Company's Outside Directors' Stock Option Plan.
2.) Definitions. For purposes of this Plan, the following terms shall
have the meanings indicated below:
(01) "Capital Stock" - any of the Company'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) "Company" - 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) "Non-Qualified Stock Option" - an option, not intended to qualify
as an Incentive Stock Option as defined in Section 422 of the Code, to
purchase Capital Stock of the Company.
(07) "Option" - the term shall refer to a Non-Qualified Stock Option.
(08) "Option Agreement" - a written agreement pursuant to which the
Company grants an option to an Optionee and sets the terms and
conditions of the option.
(9) "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 Company.
(10) "Option Stock" - the voting common stock of the Company, no par
value per share, (subject to adjustment as described in Section 7)
reserved for options pursuant to this Plan, or any other class of stock
of the Company which may be substituted therefor by exchange, stock
split or otherwise.
(11) "Optionee" - an officer, management level employee, other
employee, and consultant of the Company to whom an option has been
granted under the Plan.
(12) "Plan" - this 1996 Stock Option Plan, as amended hereafter from
time to time.
(13) A "Subsidiary" - any corporation in an unbroken chain of
corporations beginning with the Company, 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 Company's authorized Capital
Stock in an amount equal to 200,000 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 7. Except as provided
in Section 7, 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 of not less than two (2) members of the Board of Directors of the
Company (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 (the "Section 16 Regulations"). Any such
committee shall exercise those functions delegated to it by the Board of
Directors. To the extent permitted by the Section 16 Regulations, the Board of
Directors may serve as the Committee.
The Company 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 Non-Qualified Options. Non-Qualified Options may be
granted only to an officer, management level employee, other employee or
consultant of the Company or a subsidiary. No further restrictions are placed on
the Committee in determining eligibility for granting Non- Qualified Options.
6.) Terms and Conditions of Options. Whenever the Committee shall
designate an Optionee, it shall communicate to the Secretary of the Company 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 Company 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 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. The Option price shall be subject to adjustment as provided in
Section 7 hereof.
(02) Time and Manner of Exercise of Option. The vesting and time of
exercise of each Option shall be determined from time to time by the
Committee and shall be set forth in the Option Agreement with each
Optionee. In no event may an Option be exercised after ten (10) years
from the date on which the Option was granted.
(03) Termination of Employment, Except Death or Disability. In the
event that an Optionee shall cease to be employed by the Company for
any reason other than his or her death, disability or "for cause," such
Optionee shall have the right to exercise any vested outstanding
Options which were exercisable at the time of termination of employment
at any time within three (3) months after the termination of the
employee or until the earlier date of termination thereof under this
Plan or the Option Agreement. Any vested Options not exercised within
the three (3) month period shall terminate at the expiration of such
period. In the event that the Optionee shall be terminated "for cause"
including but not limited to: (i) willful breach of any agreement
entered into with the Company; (ii) misappropriation of the Company's
property, fraud, embezzlement, other acts of dishonesty against the
Company; or (iii) conviction of any felony or crime involving moral
turpitude, the Option shall terminate as of the date of the Optionee's
termination of employment.
(04) 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 Company or any Subsidiary, or (ii)
within a period of three (3) months after the termination of his or her
employment with the Company or any Subsidiary as provided in paragraph
(03) of this section, and in either case shall not have fully exercised
his or her vested Options, any vested Options granted pursuant to the
Plan which were exercisable at the date of termination of employment
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 (06) 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
death.
(05) 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.
(06) Manner of Exercise of Options. An Option may be exercised, in
whole or in part, at such time or times and with such rights with
respect to such shares which have accrued and are in effect. Such
Option shall be exercisable only by: (i) written notice to the Company
of intent to exercise the Option with respect to a specified number of
shares of stock; (ii) tendering the original Option Agreement to the
Company; and (iii) payment to the Company 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
Company 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; provided, however, that
there shall be no such exercise at any one time as to fewer than one
hundred (100) 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 Company
before the Option 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 Company.
(07) Option Certificate. The Board of Directors shall have discretion
to issue a certificate representing an Option granted pursuant to this
Plan. Such certificate shall be surrendered to the Company upon
exercise of the Option.
(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 Company
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 Company, or the stock transfer agent
for the Company, 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.
(9) Other Provisions. The Option Agreements under this Section shall
contain such other provisions as the Committee shall deem advisable.
7.) Adjustments. In the event that the outstanding shares of the common
stock of the Company 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 Company does not exercise its right under paragraph 12 hereof to
accelerate the date of any Options and 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 Company 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 Company 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.
8.) Rights as Stockholder. An Optionee shall not, by reason of any
Option granted hereunder, have any right of a stockholder of the Company with
respect to the shares covered by his Option until such shares shall have been
issued to the Optionee.
9.) 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 Company's rights to terminate such
employment.
10.) 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 Company, the
Company shall have the right to require the Optionee to remit to the Company 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 Company 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 Company 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.
11.) 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 Company 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 Company which is
satisfactory in form and scope to counsel for the Company and upon which, in the
opinion of such counsel, the Company 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, damages 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.
12.) Modification of Outstanding Options. The Committee, without the
consent of the Optionee, may accelerate the exercisability of an outstanding
Option upon the merger, consolidation, reorganization or similar transaction
with another entity and shorten the time period within which an Optionee must
exercise his or her Options. In addition, the Committee, at any time, 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 Company and in accordance with the purposes of the Plan.
13.) 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 Company operates or has employees.
14.) Approval of Board of Directors. This Plan is subject to approval
of the majority of the members of the Board of Directors of the Company.
15.) Liquidation. Upon the complete liquidation of the Company, any
unexercised Options theretofore granted under this Plan shall be deemed
cancelled, except as otherwise provided in Section 7 in connection with a
merger, consolidation or reorganization of the Company.
16.) Restrictions on Issuance of Shares. Notwithstanding the provisions
of Section 6, the Company 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 Company from the Securities and Exchange
Commission and any applicable state securities commissioner; or
(03) Counsel for the Company 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 exercises of Options shall be effective, and
the Company shall use its best efforts to bring about compliance with the above
conditions within a reasonable time, except that the Company 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.
17.) Termination and Amendment of the Plan. This Plan shall terminate
ten (10) years after March __, 1996, 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, including, but not limited to the following: (a) increase the number
of shares reserved for Options under this Plan, (b) increase the maximum term of
the Options provided for herein, or (c) change the class of persons eligible to
receive Options under the Plan.
[LETTERHEAD FOR: 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
1996 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 200,000
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
