<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 26, 1998
REGISTRATION NO. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
TUSCARORA INCORPORATED
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-1119372
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 FIFTH AVENUE
NEW BRIGHTON, PENNSYLVANIA 15066
724-843-8200
(Address, including ZIP Code, and telephone number, including area code,
of registrant's principal executive offices)
---------------
1997 STOCK INCENTIVE PLAN
BRIAN C. MULLINS
VICE PRESIDENT AND TREASURER
TUSCARORA INCORPORATED
800 FIFTH AVENUE
NEW BRIGHTON, PENNSYLVANIA 15066
724-843-8200
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copy to:
EDWARD HOOPES, ESQUIRE
REED SMITH SHAW & MCCLAY LLP
435 SIXTH AVENUE
PITTSBURGH, PA 15219
412-288-3196
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Type of Proposed Proposed Amount of
Securities to be Amount to be Maximum Offering Maximum Aggregate Registration
Registered Registered Price Per Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 750,000 $15.9375* $11,953,125 $3,527
without par value
=======================================================================================================================
</TABLE>
*Estimated solely for the purpose of calculating the amount of the
registration fee. Pursuant to Rules 457(h) and (c), the proposed maximum
aggregate offering price is 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 June 23, 1998 as quoted in
The Wall Street Journal.
==============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Tuscarora Incorporated (the "Company")
with the Securities and Exchange Commission (File No. 001-17051), are hereby
incorporated herein by reference:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934 (the "1934 Act");
(b) All other reports filed by the Company pursuant to Section 13(a)
of the 1934 Act since the end of the fiscal year covered by the annual
report on Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock contained in the
Company's current report on Form 8-K, filed on August 22, 1995
pursuant to Section 13(a) of the 1934 Act, including any amendment or
report filed 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 1934 Act, prior to the filing of a
post-effective amendment which indicates that all 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 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 hereof to the extent that a statement contained herein or in any
other subsequently filed incorporated document modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to exist or constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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.
II-1
<PAGE> 3
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 interests 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 provision 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,
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 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 referenced 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 actions 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 as a 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
provisions. Section 1747 declares such insurance to be consistent with the
public policy of the Commonwealth of Pennsylvania.
II-2
<PAGE> 4
2. Indemnification Article. In implementation of the
above-stated provision of the BCL, the Company's shareholders adopted an
amendment to add an 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
proceeding, whether civil, criminal, administrative, investigative or other, or
whether brought by or against the Director or officer or 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 to 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 an Indemnification and Insurance Agreement 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.
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.
II-3
<PAGE> 5
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
this insurance, the insurer will pay amounts which the Company's Directors and
officers become legally obligated to pay and for which they are legally entitled
to indemnification from the Company and the Directors and officers may have
coverage against certain liabilities for which they may not be entitled to
indemnification from the Company, in each case subject to certain limitations
and exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
An Exhibit Index, containing a list of all exhibits filed as a part of
the registration statement, is included on page II-8.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a) (3)
of the Securities Act of 1933 (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; and
II-4
<PAGE> 6
(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 information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the registrant
pursuant to Section 13 or section 15(d) of the Securities Exchange Act
of 1934 (the "1934 Act") 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) 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 1934 Act 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.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 6 above 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 1933 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 1933 Act and
will be governed by the final adjudication of such issue.
II-5
<PAGE> 7
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 Borough of New Brighton, Commonwealth of Pennsylvania, on
June 25, 1998.
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 June 25, 1998.
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 each 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>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ JOHN P. O'LEARY, JR. President and Chief Executive Officer
- --------------------------------- (Principal Executive Officer)
John P. O'Leary, Jr.
/s/ THOMAS S. BLAIR Director
- ---------------------------------
Thomas S. Blair
/s/ DAVID I. COHEN Director
- ---------------------------------
David I. Cohen
/s/ ABE FARKAS Director
- ---------------------------------
Abe Farkas
/s/ KAREN L. FARKAS Director
- ---------------------------------
Karen L. Farkas
</TABLE>
II-6
<PAGE> 8
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ ROBERT W. KAMPMEINERT Director
- ---------------------------------
Robert W. Kampmeinert
Director
- ---------------------------------
Jeffery L. Leininger
/s/ DAVID C. O'LEARY Director
- ---------------------------------
David C. O'Leary
/s/ HAROLD F. REED, JR. Director
- ---------------------------------
Harold F. Reed, Jr.
/s/ THOMAS P. WOOLAWAY Director
- ---------------------------------
Thomas P. Woolaway
/s/ BRIAN C. MULLINS Vice President and Treasurer
- --------------------------------- (Principal Financial Officer and
Brian C. Mullins Principal Accounting Officer)
</TABLE>
II-7
<PAGE> 9
TUSCARORA INCORPORATED
1997 STOCK INCENTIVE PLAN
-------------------------
Registration Statement on Form S-8
EXHIBIT INDEX
-------------
(Pursuant to Item 601 of Regulation S-K)
The following exhibits are filed as a part of this registration
statement:
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
4.1 Restated Articles of Incorporation, filed as Exhibit 3(i) to the
Company's annual report on Form 10-K for the fiscal year ended
August 31, 1995 and incorporated by reference.
4.2 Bylaws, 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 LLP as to the legality of the
shares of the Company's Common Stock being registered, filed
herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in the opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young L.L.P., filed herewith.
23.3 Consent of S.R. Snodgrass, A.C., filed herewith.
24.1 Powers of Attorney (contained on Page II-6 of this registration statement).
</TABLE>
II-8
<PAGE> 1
Exhibit 5.1
June 25, 1998
Tuscarora Incorporated
800 Fifth Avenue
New Brighton, PA 10566
Re: Registration Statement on Form S-8 for 1997 Stock Incentive Plan
----------------------------------------------------------------
Gentlemen:
We have acted as counsel to Tuscarora Incorporated, a Pennsylvania
corporation (the "Company"), in connection with the above-captioned Registration
Statement (the "Registration Statement") relating to 750,000 shares of Common
Stock, without par value, of the Company (the "Common Stock") which may be
purchased or acquired by employees of the Company and its subsidiaries under the
Company's 1997 Stock Incentive Plan (the "Plan"). The Plan provides that either
authorized but unissued or treasury shares of Common Stock may be issued upon
the exercise of stock options granted, or upon the award of restricted,
performance or other shares, under the Plan. In rendering our opinion below, we
have assumed that only authorized but unissued shares will be issued under the
Plan.
In connection with this opinion, we have examined, among other things:
(1) the Restated Articles of Incorporation and By-Laws of the Company,
in effect on the date hereof;
(2) the Plan as in effect on the date hereof; and
(3) Minutes of meetings of the Board of Directors and shareholders of
the Company held on October 17, 1997 and December 18, 1997, respectively,
at which the Plan was adopted by the Company's Board of Directors and
approved by the Company's shareholders.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumption set forth above, we are pleased to advise you that in our
opinion the 750,000 shares of Common Stock being registered and which may be
issued by the Company pursuant to the provisions of the Plan upon the exercise
of the stock options granted under the Plan or upon the award of restricted,
performance or other shares under the Plan have been duly authorized, and, upon
issuance, in accordance with the provisions of the Plan, will be validly issued,
fully paid and nonassessable.
In rendering the foregoing opinion, we have not examined the laws of
any jurisdiction other than the laws of the Commonwealth of Pennsylvania and the
federal laws of the United States of America. The foregoing opinion is
limited to such laws.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Yours truly,
/s/ REED SMITH SHAW & McCLAY LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Tuscarora Incorporated 1997 Stock Incentive Plan of our
reports dated October 16, 1997, with respect to the consolidated financial
statements of Tuscarora Incorporated incorporated by reference in its Annual
Report (Form 10-K) for the year ended August 31, 1997 and the related financial
statement schedules included therein, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
June 25, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated October 11, 1996 on our audits of the consolidated
financial statements and financial statement schedule of Tuscarora Incorporated
and subsidiaries as of August 31, 1996 and for each of the two years in the
period ended August 31, 1996, which report is included in the Company's Annual
Report on Form 10-K for the year ended August 31, 1997.
/s/ S.R. SNODGRASS, A.C.
------------------------
S.R. SNODGRASS, A.C.
CERTIFIED PUBLIC ACCOUNTANTS
Beaver Falls, PA
June 25, 1998
