<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 1995
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 2049
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
TUSCARORA INCORPORATED
(Exact Name of Registrant as Specified in Charter)
PENNSYLVANIA 25-1119372
(State or other jurisdiction (I.R.S Employer
of incorporation or organization) Identification No.)
------------------
800 FIFTH AVENUE
NEW BRIGHTON, PENNSYLVANIA 15066
(412) 843-8200
(Address, including zip code and telephone number,
including area code, of registrant's
principal executive offices)
BRIAN C. MULLINS
VICE PRESIDENT AND TREASURER
TUSCARORA INCORPORATED
800 FIFTH AVENUE
NEW BRIGHTON, PENNSYLVANIA 15066
(412) 843-8200
(Name, address, including zip code and telephone number,
including area code, of agent for service)
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PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
Edward Hoopes, Esq.
Reed Smith Shaw & McClay
James H. Reed Building
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-3131
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
As soon as practicable after this registration statement becomes
effective.
<PAGE> 2
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>
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF AMOUNT OFFERING AGGREGATE
SECURITIES TO TO BE PRICE PER OFFERING AMOUNT OF
BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
without par value 54,979 shares $22.375 $1,230,156 $425
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee and calculated in accordance with Rule 457(c), based on the
average of the high and low sales prices of the Common Stock as
reported on the National Market System of the National Association
of Securities Dealers, Inc. for August 17, 1995 as quoted in The
Wall Street Journal.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
<PAGE> 3
[INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.]
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 22, 1995
PROSPECTUS
54,979 SHARES
TUSCARORA INCORPORATED
COMMON STOCK
This Prospectus relates to an aggregate offering of 54,979
shares of the Common Stock, without par value (the "Common Stock"), of
Tuscarora Incorporated, a Pennsylvania corporation (the "Company"). Of the
54,979 shares of Common Stock offered hereby, 45,000 shares are being offered
by the Estate of John P. O'Leary, Sr. (the "Estate") and 9,979 shares are
being offered by John P. O'Leary, Jr., the President and Chief Executive
Officer of the Company (together, the "Selling Shareholders").
The sale of the Common Stock offered hereby is expected to be
made by the Selling Shareholders to one or more investors in negotiated
transactions based upon market price, but may also be made by other methods
(see "Plan of Distribution"). The Common Stock is traded on the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
under the symbol "TUSC". On August 18, 1995, the closing sale price, as
reported on the NASDAQ National Market System, for the Common Stock was $22.00
per share.
The 45,000 shares are being sold by the Estate to enable the
Executors to make cash distributions to beneficiaries. The 9,979 shares are
being sold by Mr. O'Leary, Jr. to raise cash to be used for personal purposes.
The Company will not receive any proceeds from the sale of the shares. The
expenses of the offering are to be paid by the Selling Shareholders.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
No person has been authorized to give any information or to
make any representations other than those contained in this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company, the Selling Shareholders or any other
person. This Prospectus does not constitute an offer to sell or solicitation
of an offer to buy any securities other than the Common Stock to which it
relates, or an offer to or solicitations of any person in any jurisdiction in
which such offer or solicitation would be unlawful. The delivery of this
Prospectus at any time does not imply that the information contained herein is
correct as of any time subsequent to its date.
-------------------------
THE DATE OF THIS PROSPECTUS IS AUGUST ___, 1995.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511, and Seven World Trade Center, 13th Floor, New York, New
York 10048. Copies of the reports and other information can be obtained from
the Public Reference Section of the Commission, Washington, D.C. 20549, at
prescribed rates.
The Company has filed with the Commission a Registration
Statement under the Securities Act of 1933, as amended, with respect to the
Common Stock offered by this Prospectus. As permitted by the rules and
regulations of the Commission, this Prospectus does not contain all of the
information set forth in the Registration Statement. For further information
about the Company and the Common Stock offered hereby, reference is made to the
Registration Statement and to the exhibits filed therewith.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company (File No.
0-17051) with the Commission pursuant to Section 13(a) of the Exchange Act are
incorporated herein by reference:
(a) Annual report on Form 10-K for the fiscal year ended
August 31, 1994;
(b) Quarterly reports on Form 10-Q for the fiscal
quarters ended November 30, 1994, February 28, 1995
and May 31, 1995; and
(c) The description of the Company's Common Stock
contained in the current report on Form 8-K filed
with the Commission on August 22, 1995, including any
amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of this offering shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the respective date of filing of each
such document. 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 Prospectus 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 Prospectus.
The Company will provide without charge to each person to whom
this Prospectus is delivered, upon written or oral request, a copy of any or
all of the information that is incorporated by reference in this Prospectus,
except that exhibits to information incorporated by reference in this
Prospectus need not be furnished, unless the exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates by reference. Any request should be directed to Brian C. Mullins,
Vice President and Treasurer, Tuscarora Incorporated, 800 Fifth Avenue, New
Brighton, Pennsylvania 15066. The Company's telephone number is (412)
843-8200.
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<PAGE> 5
THE COMPANY
The Company was incorporated in 1962 as Tuscarora Plastics,
Inc. The corporate name was changed in 1992 to reflect changes in the
Company's business.
The Company designs and manufactures products for interior
protective packaging and for material handling and other applications. Most of
the products are custom molded products made from expanded foam plastic
materials but other products are made by integrating multiple materials to meet
customer requirements. The Company also supplies customers with custom molded
foam plastic thermal insulation products and components and manufactures rigid
plastic products for material handling applications and component parts.
The Company has been manufacturing custom molded products
since its inception and is the largest manufacturer in the United States of
custom molded products made from expanded foam plastic materials. Integrated
materials products and rigid plastic products were not manufactured by the
Company prior to 1991. The manufacture of these products has resulted
primarily from a number of small business acquisitions.
The Company serves more than 2,500 customers located in North
America and the British Isles, from 26 locations. Among the Company's
customers are manufacturers of consumer and industrial products in the
electronic, high technology, appliance and automotive industries.
The Company's executive offices are located at 800 Fifth
Avenue, New Brighton, Pennsylvania 15066 (telephone number (412) 843-8200).
SELLING SHAREHOLDERS
Of the 54,979 shares of the Company's Common Stock being
offered, 45,000 shares are being offered by the Estate of John P. O'Leary, Sr.
and 9,979 shares are being offered by John P. O'Leary, Jr.
The Executors of the Estate of John P. O'Leary, Sr. are John
P. O'Leary, Jr., David C. O'Leary, Kerry Sue Zombeck and Mellon Bank, N.A.
John P. O'Leary, Jr. is the President and Chief Executive Officer of the
Company and David C. O'Leary is the Vice President, Sales and Marketing of the
Company. The Executors of the Estate, other than Mellon Bank, N.A., are the
three children of John P. O'Leary, Sr., who was a founder of the Company. Mr.
O'Leary, Sr. was Chief Executive Officer of the Company for many years until
his retirement as an officer on December 31, 1989. He remained a director of
the Company until his death on June 28, 1994.
The Estate of John P. O'Leary, Sr. beneficially owns 270,819
shares, constituting approximately 4.40% percent of the Company's issued and
outstanding Common Stock, and John P. O'Leary, Jr. beneficially owns 222,741
shares, constituting approximately 3.62% percent of the Company's issued and
outstanding Common Stock. In the case of Mr. O'Leary, Jr., in addition to
84,878 shares he personally owns, his beneficial ownership consists of (i)
1,112 shares owned jointly with his wife, (ii) 32,200 shares covered by
presently exercisable stock options granted under the Company's stock option
plans; (iii) 157 shares credited to his account under the Company's Common
Stock Purchase Plan; (iv) 34,204 shares held in the aggregate in custodian
accounts for children, by a child sharing his home and by a trust as to which
Mr. O'Leary, Jr. is the trustee, as to all of which beneficial ownership is
disclaimed by Mr. O'Leary, Jr.; and (v) 70,190 shares held by the trust for the
individual account defined contribution pension plans of the Company as to
which Mr. O'Leary, Jr. is a named fiduciary but in which Mr. O'Leary, Jr. has
no economic interest except as a plan participant.
After the sale of the shares being offered, the Estate and Mr.
O'Leary, Jr. will beneficially own 225,819 and 212,762 shares of Common Stock,
constituting approximately 3.67% and 3.46% of the Company's issued and
outstanding Common Stock, respectively.
The 45,000 shares are being sold by the Estate to enable the
Executors to make cash distributions to beneficiaries. The 9,979 shares are
being sold by Mr. O'Leary, Jr. to raise cash to be used for personal purposes.
The expenses of the offering are to be paid by the Selling Shareholders in
proportion to the number of shares sold for the account of each Selling
Shareholder.
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<PAGE> 6
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of
shares of Common Stock by the Selling Shareholders.
PLAN OF DISTRIBUTION
The Selling Shareholders presently plan to sell all the Common
Stock offered hereby directly to one or more investors in negotiated
transactions based upon market price. Alternatively, the Selling Shareholders
may from time to time sell shares through brokers or dealers. Sales through
brokers or dealers may be effected in transactions that take place in the
over-the-counter market, including ordinary broker's transactions, or through
sales to a broker or dealer as principal for resale by such broker or dealer
for its own account. Sales may be made at market prices prevailing at the time
of sale, at prices relating to such prevailing market prices, at negotiated
prices or otherwise.
In effecting sales, brokers or dealers engaged by a Selling
Shareholder may arrange for other brokers or dealers to participate. Brokers
or dealers would receive commissions or discounts from the Selling
Shareholders in amounts negotiated between them. The Selling Shareholders and
intermediaries through which the shares are sold may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended,
with respect to the Common Stock offered, and any profits realized or
commissions received may be deemed underwriting compensation.
EXPERTS
The financial statements incorporated in this prospectus by
reference from the Company's annual report on Form 10-K for the year ended
August 31, 1994, have been audited by S.R. Snodgrass, A.C., independent
accountants, as stated in their reports which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
LEGAL OPINION
The validity of the Common Stock registered hereby has been
passed upon for the Company and the Selling Shareholders by Reed Smith Shaw &
McClay, 435 Sixth Avenue, Pittsburgh, Pennsylvania 15219.
-4-
<PAGE> 7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the distribution
of the securities being registered (other than underwriting discounts
and commissions, if any) are as follows:
<TABLE>
<S> <C>
SEC registration fee.................................... $ 425
Accounting fees and expenses............................ 500
Legal fees and miscellaneous............................ 6,000
------
Total......................................... $6,925
======
</TABLE>
All the above amounts are estimated except the SEC
registration fee. All the expenses are to be paid by the Selling
Shareholders in proportion to the number of shares sold for the
account of each Selling Shareholder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
1. Provisions of the Pennsylvania Business Corporation
Law of 1988 (the "BCL"). Section 1741 of the BCL provides that a
corporation shall (subject to the provisions described in the
second succeeding paragraph) have the power to indemnify any person
who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that such
person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if such person acted
in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
this conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that such person did not act in good faith and in a manner
which he reasonably believed to be in, or not opposed to, the best
interest of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 1742 of the BCL provides that a corporation shall (subject
to the provisions described in the succeeding paragraph) have the power
to indemnify any person who was or is a party, or is threatened to be
made a party, to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless,
and only to the extent that, the court of common pleas of the county in
which the registered office of the corporation is located or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court of common pleas
or such other court shall deem proper.
Section 1744 of the BCL provides that any such indemnification
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director,
II-1
<PAGE> 8
officer, employee or agent is proper in the circumstances because such
person has met the applicable standard of conduct. Such determination
shall be made:
(1) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action,
suit or proceeding; or
(2) If such a quorum is not obtainable, or, even if obtainable a
majority vote of a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion;
or
(3) By the shareholders.
Notwithstanding the above, Section 1743 of the BCL provides that
to the extent that a director, officer, employee or agent of the
corporation is successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 1741 or Section 1742,
or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorney fees) actually
and reasonably incurred by such person in connection therewith.
Section 1746 of the BCL provides that the rights to indemnification
provided by or granted pursuant to the above sections shall not
be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any bylaw, agreement, vote of
shareholders or directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
that office.
Section 1747 of the BCL provides that a Pennsylvania business
corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation asa director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against such person and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify the
director, officer, employee or agent against such liability under the
foregoing provision. Section 1747 declares such insurance to be
consistent with the public policy of the Commonwealth of Pennsylvania.
2. Indemnification Article. In implementation of the
above-stated provisions of the BCL, the Company's shareholders
adopted an amendment to add a new Article 12th to the Company's
Articles of Incorporation (the "Indemnification Article") which
provides that, except as prohibited by law every Director and officer
of the Company is entitled as of right to be indemnified by the Company
against expenses and any liabilities incurred by such person in
connection with any actual or threatened claim, action, suit or
proceedings, whether civil, criminal, administrative, investigative or
other, or whether brought by or against the Director or officer or
II-2
<PAGE> 9
by or in the right of the Company or otherwise, by reason of the
Director or officer being or having been a Director or officer of the
Company or a subsidiary of the Company or by reason of the fact that
the Director or officer is or was serving at the request of the Company
as a director, officer, employee, fiduciary or other representative of
another company, partnership, joint venture, trust, employee benefit
plan or other entity. The rights to indemnification do not, however,
apply (i) where any act or failure to act giving rise to a claim for
indemnification for expenses or liability is determined by a court to
have constituted willful misconduct or recklessness or (ii) where
Federal law would prohibit such indemnification, and in an action
brought by a Director or officer against the Company, the Director or
officer is only entitled to indemnification for expenses in certain
circumstances. Each Director and officer is also entitled as of right
to have his expenses in defending an action paid in advance by the
Company prior to final disposition of the action, provided the company
receives a written undertaking by or on behalf of the Director or
officer to repay the amount advanced if it should ultimately be
determined that the Director or officer is not entitled to be
indemnified. In addition, rights to partial indemnification for
expenses and liability are provided in certain circumstances, and a
procedure is established under which a Director or officer may bring an
action against the Company if a written claim for indemnification or
advancement of expenses is not paid by the Company in full within 30
days after the claim has been presented. The Director or officer is
also entitled to advancement of expenses in this proceeding.
The rights to indemnification and advancement of expenses provided
by the Indemnification Article are also not deemed exclusive of any
other rights, whether existing or created after the adoption of the
Indemnification Article, to which a Director or officer may be entitled
under any agreement, provision in the Articles or By-Laws of the
Company, vote of shareholders or Directors or otherwise; and the rights
to indemnification and advancement of expenses continue as to each
Director or officer who has ceased to have the status pursuant to which
he was entitled to indemnification and inure to the benefit of the
heirs and legal representatives of the Director or officer. Any
amendment or repeal of the Indemnification Article or adoption of any
By-Law or other provision of the Articles which has the effect of
limiting in any way the rights provided by the Indemnification Article
will operate prospectively only and will not affect any action taken,
or failure to act, by a Director or officer prior to such amendment,
repeal, By-Law or other provision becoming effective.
3. Indemnification and Insurance Agreements. The Company also
has entered into Indemnification and Insurance Agreements with each of
its Directors. The agreement provides essentially the same rights to
indemnification against expenses and liability, advancement of expenses
and partial indemnification as are provided in the Indemnification
Article, except that a contractee has the additional right to cause
judgment to be confessed against the Company if expenses are not
advanced by the Company within 30 days after a written request by the
contractee. In addition, under the agreement expenses and liability
may be advanced to a contractee before payment is reasonably expected
to be made to the contractee under an insurance policy or a security
arrangement established by the Company subject to an undertaking to
reimburse the Company for the amount advanced upon receipt of such
amount by the contractee pursuant to the insurance policy or security
arrangement.
II-3
<PAGE> 10
Further, the agreement provides that if the full indemnification
claimed by the contractee may not be paid by the Company to the
contractee because such indemnification is prohibited under law and the
Company has been found to be jointly liable with the contractee as to
the matter for which indemnification was sought (or would be so liable
if the Company were joined in such matter), the contractee has a right
to contribution from the Company for the amount of any expenses or
liability incurred by the contractee as to such matter based on the
relative benefits received by the Company and the contractee from the
transaction from which the liability arose and the relative fault of
the Company (including the Company's other directors, officers,
employees or agents) and the contractee in connection with the events
which resulted in such expenses or liability, as well as other relevant
equitable considerations.
Separately, the agreement, while not requiring the Company to
maintain the director and officer liability insurance in effect at the
time the agreement is entered into with a contractee, provides that if
such insurance is not maintained, the Company will in effect become a
self-insurer by providing the same insurance benefits that would have
been provided had the insurance been continued. Since the Company may
purchase insurance against certain types of liabilities, such as
liabilities under the Federal securities laws, for which the Company
might not be able to provide indemnification, this contract right may
have the effect of providing broader payment rights than are available
under the Indemnification Article should the Company fail to maintain
its director and officer liability insurance.
Under the agreement, a contractee is entitled to the rights to
indemnification for expenses and liability, advancement of expenses and
liability, contribution and payment for failure to maintain insurance
provided by the agreement notwithstanding any amendment or repeal of
the Indemnification Article. In addition, although a change in law
restricting indemnification rights would automatically restrict the
indemnification rights provided under the Indemnification Article, the
agreement provides that a change in law restricting indemnification
rights will not affect the indemnification rights of a contractee
unless the law so requires.
Indemnification and Insurance Agreements will also be entered into
with future Directors and such other officers, employees and agents of
the Company and its subsidiaries as shall be designated from time to
time by the Board of Directors. Each agreement will only apply to
actions commenced after the date of the agreement; but such actions may
arise from acts or omissions occurring before the date of the
agreement.
4. Director and Officer Liability Insurance. As permitted by
Section 1747 of the BCL, the Company has purchased Director and
officer liability insurance covering its Directors and officers with
respect to liability which they may incur in connection with their
serving as such. Under the insurance, the Company will receive
reimbursement for amounts as to which the Directors and officers are
indemnified under the Indemnification Article. The insurance may also
provide certain additional coverage for the Directors and officers
against certain liability even though such liability is not subject to
indemnification under the Indemnification Article.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
4.1 Restated Articles of Incorporation of the Company, filed as
Exhibit 3.1 to Registration Statement No. 33-17138 on Form S-1,
as amended by Articles of Amendment and a related Certificate of
Correction, filed as Exhibit 3.2 to the Company's annual report on
Form 10-K for the fiscal year ended August 31, 1992, each as
incorporated herein by reference
4.2 By-Laws of the Company, as amended and restated effective
December 15, 1994, filed as Exhibit 3(ii) to the Company's
quarterly report on Form 10-Q for the fiscal quarter ended
February 28, 1995 and incorporated herein by reference
5.1 Opinion of Reed Smith Shaw & McClay as to the legality of the
shares being registered, including consent, filed herewith
23.1 Consent of Reed Smith Shaw & McClay (included in Exhibit 5.1 above)
23.2 Consent of S.R. Snodgrass, A.C., filed herewith
24.1 Power of Attorney (filed herewith as part of signature page)
</TABLE>
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<PAGE> 11
ITEM 17. UNDERTAKINGS
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933, as amended (the
"1933 Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 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.
(h) Request for Acceleration of Effective Date
Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the indemnification provisions
described under Item 15, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 1933 Act
and is, therefore, enforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by a director, officer or
controlling person in connection with the securities being registered,
the Company 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 1933 Act and will be
governed by the final adjudication of such issue.
II-5
<PAGE> 12
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 Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Pittsburgh, Pennsylvania, on
August 21, 1995.
TUSCARORA INCORPORATED
By /s/ JOHN P. O'LEARY, JR.
------------------------------------
John P. O'Leary, Jr.
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in
the capacities indicated on August 21, 1995.
Know All Men By These Presents that each person whose
signature appears below constitutes and appoints John P. O'Leary, Jr.
and Brian C. Mullins, and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
revocation, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file
the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and either of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or either of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
SIGNATURE TITLE
<S> <C>
/s/ JOHN P. O'LEARY, JR.
------------------------ President and Chief Executive Officer
John P. O'Leary, Jr. (Principal Executive Officer)
/s/ JAMES T. ANDERSON, JR.
-------------------------- Director
James T. Anderson, Jr.
/s/ THOMAS S. BLAIR
---------------------- Director
Thomas S. Blair
/s/ DAVID I. COHEN
---------------------- Director
David I. Cohen
</TABLE>
II-6
<PAGE> 13
SIGNATURE TITLE
/s/ ABE FARKAS
------------------------- Director
Abe Farkas
/s/ KAREN L. FARKAS
------------------------- Director
Karen L. Farkas
/s/ ROBERT W. KAMPMEINERT
------------------------- Director
Robert W. Kampmeinert
/s/ DAVID C. O'LEARY
------------------------- Director
David C. O'Leary
/s/ HAROLD F. REED, JR.
------------------------- Director
Harold F. Reed, Jr.
/s/ JAMES I. WALLOVER
------------------------- Director
James I. Wallover
/s/ THOMAS P. WOOLAWAY
------------------------- Director
Thomas P. Woolaway
/s/ BRIAN C. MULLINS
------------------------- Vice President and Treasurer
Brian C. Mullins (Principal Financial Officer and
Principal Accounting Officer)
II-7
<PAGE> 14
TUSCARORA INCORPORATED
Registration Statement on Form S-3
EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION AND METHOD OF FILING
----------- --------------------------------
<S> <C>
4.1 Restated Articles of Incorporation of the Company, filed as
Exhibit 3.1 to Registration Statement No. 33-17138 on Form S-1,
as amended by Articles of Amendment and a related Certificate
of Correction, filed as Exhibit 3.2 to the Company's annual
report on Form 10-K for the fiscal year ended August 31, 1992,
each as incorporated herein by reference
4.2 By-Laws of the Company, as amended and restated effective
December 15, 1994, filed as Exhibit 3(ii) to the Company's
quarterly report on Form 10-Q for the fiscal quarter ended
February 28, 1995 and incorporated herein by reference
5.1 Opinion of Reed Smith Shaw & McClay as to the legality of
the shares being registered, including consent, filed herewith
23.1 Consent of Reed Smith Shaw & McClay (included in Exhibit
5.1 above)
23.2 Consent of S. R. Snodgrass, A.C., filed herewith
24.1 Power of Attorney (filed herewith as
part of signature page)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
REED SMITH SHAW & MCCLAY
435 SIXTH AVENUE
MAILING ADDRESS: WASHINGTON, DC
P.O. BOX 2009 PITTSBURGH, PA 15219-1886 PHILADELPHIA, PA
PITTSBURGH, PA 15230-2009 HARRISBURG, PA
412-288-3131 McLEAN, VA
FACSIMILE 412-288-3063 PRINCETON, NJ
WRITER'S DIRECT DIAL NUMBER
August 21, 1995
Tuscarora Incorporated
800 Fifth Avenue
New Brighton, PA 15066
Re: Registration Statement on
Form S-3 Concerning
Secondary Offering of 54,979
Shares of Common Stock
----------------------------
Dear Sirs:
We are counsel for Tuscarora Incorporated, a Pennsylvania
corporation (the "Company"), and have acted as such in connection with
a proposed sale by certain selling shareholders of the Company of
54,979 shares in the aggregate (the "Shares") of the Company's Common
Stock, without par value. This opinion is furnished in connection with
the filing by the Company of a Registration Statement on Form S-3 under
the Securities Act of 1933, as amended, relating to such proposed sale.
We have examined such public and corporate records and documents and
such questions of law, and have made such other investigations, as we
have deemed appropriate for purposes of this opinion.
Based upon the foregoing, we are pleased to advise you that
in our opinion the Shares have been legally and validly issued and are
fully paid and non-assessable.
In rendering the foregoing opinion, we have examined the laws
of the Commonwealth of Pennsylvania and the federal laws of the United
States of America and the foregoing opinion is limited to such laws.
We hereby consent to the filing of this opinion as an exhibit
to such Registration Statement and to the reference to us under the
caption "Legal Matters" in the prospectus contained therein.
Yours truly,
/s/ REED SMITH SHAW & McCLAY
EH:PDGJr
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the
Prospectus forming part of this Registration Statement on Form S-3 of
our reports dated October 7, 1994 on our audits of the consolidated
financial statements and financial schedules of Tuscarora Incorporated
and its subsidiaries as of August 31, 1994 and 1993, and for the years
ended August 31, 1994, 1993 and 1992, which reports are included in the
annual report on Form 10-K of Tuscarora Incorporated for the year ended
August 31, 1994.
We also consent to the reference to our Firm under the
caption "Experts" in the Prospectus forming part of this Registration
Statement.
/s/ S. R. SNODGRASS, A.C.
Beaver Falls, PA
August 21, 1995
