<PAGE>
As filed with the Securities and Exchange Commission on July 6, 1998
REGISTRATION NO. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
DRYPERS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 76-0344044
(State or other jurisdiction of incorporation (I.R.S Employer
or organization) Identification No.)
5300 MEMORIAL DRIVE,
SUITE 900 77007
HOUSTON, TEXAS
(Address of Principal Executive Offices) (Zip Code)
DRYPERS CORPORATION 401(K) PLAN
(Full title of the plan)
WALTER V. KLEMP
DRYPERS CORPORATION
5300 MEMORIAL DRIVE, SUITE 900
HOUSTON, TEXAS 77007
(Name and address of agent for service)
(713) 869-8693
(Telephone number, including area code, of agent for service)
Copies to:
ROBERT F. GRAY, JR., ESQ.
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
---------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PRICE PER SHARE PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 750,000(1) $6.375( 2) $4,781,250(2) $1,410.47
======================================================================================================================
(1) Maximum number of shares of Common Stock that can be contributed by Drypers Corporation to participants in the Plan.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Acts of 1933
and based upon the average of the high and low sales prices of a shares of Common Stock as reported by the Nasdaq National
Market on June 30, 1998.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Drypers Corporation 401(k) Plan.
====================================================================================================================================
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Drypers Corporation (the "Company" or "Registrant") and the Drypers
Corporation 401(k) Plan, as amended (the "Plan"), incorporate by reference in
this Registration Statement the following documents:
(1) The Registrant's annual report on Form 10-K for the year ended
December 31, 1997, and the Plan's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(2) The Registrant's quarterly report on Form 10-Q for the quarter
ended March 31, 1998.
(3) All other reports filed by the Registrant and the Plan
pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31,
1997.
(4) The description of the Registrant's common stock, $.001 par
value (the "Common Stock"), which in contained in the Registrant's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission (the "Commission) on February 14, 1994, including any
amendments or reports filed for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock is being passed upon for the
Registrant by Fulbright & Jaworski L.L.P., Houston, Texas. Certain members of
the firm of Fulbright & Jaworski own 12,821 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has authority under Section 145 of the General Corporation
Law of the State of Delaware to indemnify its officers, directors, employees and
agents to the extent provided in such statute. Article Ninth of the Company's
Restated Certificate of Incorporation, referenced as Exhibit 3.1 hereto, and
Article VIII of the Company's Bylaws, referenced as Exhibit 3.2 hereto, provide
for indemnification of the Company's officers, directors, employees and agents.
Section 102 of the General Corporation Law of the State of Delaware
permits the limitation of directors' personal liability to the corporation or
its stockholders for monetary damages for breach of fiduciary duties as a
director except for (i) any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) breaches
under Section 174 of the Delaware General Corporation Law, which relates to
unlawful payments of dividends or unlawful stock repurchases or redemptions and
(iv) any transaction from which the director derived an improper personal
benefit.
<PAGE>
Article Ninth of the Company's Restated Certificate of Incorporation
limits a director's personal liability to the extent permitted by Section 102.
Article VIII of the Company's Bylaws provides that the Company may
maintain insurance, at its expense, to protect itself and any of its directors,
officers, employees or agents or any person serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against and incurred by such person, or arising out of such person's
status as such, whether or not the Company would have the power to indemnify
such person against such liability under the Delaware General Corporation Law.
Pursuant to this provision, the Company currently maintains directors and
officers insurance.
The Company has entered into an indemnity agreement with each of its
officers and directors contractually obligating the Company to indemnify such
person to the fullest extent permitted by the General Corporation Law of the
State of Delaware. The Company has agreed that (i) the indemnification
obligations of the Company under its Certificate of Incorporation and Bylaws
constitute binding contractual obligations to each of the Company's officers and
directors immediately prior to the Recapitalization and (ii) the amendment or
repeal of those provisions will not affect the rights of officers and directors
of the Company immediately prior to the Recapitalization relating to services
occurring prior to such amendment or repeal.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors, officers or persons controlling the Registrants pursuant to the
foregoing provisions, the Registrants have been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
*3.1 Restated Certificate of Incorporation of Drypers Corporation, as
amended (Filed as Exhibit 3.1 to Form S-4/A filed June 8, 1998,
Registration Statement No. 333-52597).
*3.2 Bylaws of Drypers Corporation, as amended, dated January 21, 1994
(Filed as Exhibit 3.2 to Form S-1 filed January 26, 1994, Registration
Statement No. 33-74436).
*4.1 Form of Common Stock Certificate (Filed as Exhibit 4.2 to Form S-1
filed January 26, 1994, Registration Statement No. 33-74436).
*4.2 Forms of Warrants (Filed as Exhibit 4.37 to Form S-1 filed October
8, 1993, Registration Statement No. 33-70098).
*+4.3 Form of Nonqualified Stock Option Agreement, as amended, entitling the
persons listed on Schedule 4.9 to purchase an aggregate of 125,000
shares of Common Stock (Filed as Exhibit 4.9 to Amendment No. 1 to
Form S-1 filed February 17, 1994, Registration Statement No.
33-74436).
*+4.4 Form of Nonqualified Stock Option Agreement, as amended, entitling the
persons listed on Schedule 4.10 to purchase an aggregate of 93,750
shares of Common Stock (Filed as Exhibit 4.10 to Amendment No. 1 to
Form S-1 filed February 17, 1994, Registration Statement No.
33-74436).
*+4.5 Form of Nonqualified Stock Option Agreement dated April 9, 1993,
entitling the persons listed on Schedule 4.11 to purchase an aggregate
of 71,875 shares of Common Stock (Filed as Exhibit 4.11 to Form S-1
filed January 26, 1994, Registration Statement No. 33-74436).
*+4.6 Form of Nonqualified Stock Option Agreement dated October 1, 1992,
entitling the persons listed on Schedule 4.13 to purchase an aggregate
of 45,000 shares of Common Stock (Filed as Exhibit 4.13 to Form S-1
filed January 26, 1994, Registration Statement No. 33-74436).
*+4.7 Form of Nonqualified Stock Option Agreement dated December 31, 1993,
entitling the persons listed on Schedule 4.16 to purchase an aggregate
of 31,250 shares of Common Stock (Filed as Exhibit 4.16 to Form S-1
filed January 26, 1994, Registration Statement No. 33-74436).
<PAGE>
*4.8 Form of Investment and Stock Registration Agreement dated November 10,
1992, by and among the Company and the persons listed on Schedule 4.34
attached thereto (Filed as Exhibit 4.34 to Form S-4 filed November 20,
1992, Registration Statement No. 33-54810).
*4.9 Rights Agreement dated January 20, 1995 by and between Drypers
Corporation and ChaseMellon Shareholder Services, L.L.C. (Filed as
Exhibit 4.20 to Form 10-K filed March 31, 1997, Commission File No.
0-23422).
*4.10 Rights Agreement Amendment dated as of February 26, 1996, by and
between Drypers Corporation and ChaseMellon Shareholder Services,
L.L.C. (Filed as Exhibit 4.20 to Form 10-K filed March 31, 1997,
Commission File No. 0-23422).
*4.11 Indenture dated as of June 15, 1997, between Drypers Corporation and
Bankers Trust Company, as Trustee (Filed as Exhibit 4.1 to Form 10-Q
filed August 12, 1997, Commission File No. 0-23422).
*4.12 First Supplemental Indenture dated as of March 6, 1998, between
Drypers Corporation and Bankers Trust Company, as Trustee.
*4.13 VRG Holding Corporation 1992 Incentive Stock Option Plan, as amended
(Filed as Exhibit 10.14 to Amendment No. 1 to Form S-1 filed February
17, 1994, Registration Statement No. 33-74436).
*+4.14 VRG Holding Corporation 1991 Nonqualified Stock Option Plan (Filed as
Exhibit 10.15 to Form S-4 filed November 20, 1992, Registration
Statement No. 33-54810).
*4.15 Memorandum of Preferred Stock Purchase Agreement dated July 31, 1994,
by and among Drypers Corporation, Seler S.A., Ricardo Marcelo
Albamonte and Alfred Garcia Bernal (Filed as Exhibit 10.1 to Form 10-Q
filed August 15, 1994, Commission File No. 0-23422).
*4.16 Drypers Corporation 1995 Key Employee Stock Option Plan (Filed as
Exhibit 10.1 to Form 10-Q filed August 4, 1995, Commission File
No. 0-23422).
*4.17 Drypers Corporation 1994 Non-Employee Director Option Plan (Filed as
Exhibit 10.2 to Form 10-Q filed August 4, 1995, Commission File
No. 0-23422).
*4.18 Form of Drypers Corporation 1995 Key Employee Stock Option Plan
Nonqualified Stock Option Agreement (Filed as Exhibit 10.3 to
Form 10-Q filed August 4, 1995, Commission File No. 0-23422).
*4.19 Form of Drypers Corporation 1995 Key Employee Stock Option Plan
Incentive Stock Option Agreement (Filed as Exhibit 10.4 to Form 10-Q
filed August 4, 1995, Commission File No. 0-23422).
*+4.20 Drypers Corporation Amended and Restated 1995 Key Employee Stock
Option Plan. (Filed as Exhibit 10.28 to Amendment No. 1 to Form S-4
filed September 15, 1997, Registration Statement No. 333-34071).
*+4.21 Drypers Corporation 1996 Non-Employee Director Stock Option Plan.
(Filed as Exhibit 10.29 to Amendment No. 1 to Form S-4 filed September
15, 1997, Registration Statement No. 333-34071).
*+4.22 First Amendment to Drypers Corporation Amended and Restated 1995 Key
Employee Stock Option Plan. (Filed as Exhibit 10.30 to Amendment No. 1
to Form S-4 filed September 15, 1997, Registration Statement
No. 333-34071).
*4.23 Drypers Corporation 401(k) Plan (Filed as Exhibit 10.25 to Amendment
No. 1 to Form S-1 filed February 17, 1994, Registration Statement
No. 33-74436).
4.24 First Amendment to Drypers Corporation 401(k) Plan.
4.25 Second Amendment to Drypers Corporation 401(k) Plan.
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Fulbright & Jaworski, L.L.P. (contained in Exhibit 5.1).
24.1 Powers of Attorney (See page II-6).
- --------
* Incorporated by reference to the filing indicated.
+ Management contract or compensatory plan or arrangement.
<PAGE>
ITEM 9. UNDERTAKINGS.
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this 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
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 and will be governed by the final
adjudication of such issue.
<PAGE>
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 City of Houston, State of Texas, on July 6, 1998.
DRYPERS CORPORATION
By: /s/ Walter V. Klemp
--------------------------------
Walter V. Klemp
Chairman of the Board
and Co-Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each director and officer of Drypers
Corporation whose signature appears below constitute and appoint Walter V. Klemp
and Jonathan P. Foster, and each of them, their true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for each of them
and in each of their names, places and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement on Form S-8, and to file the same and all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting said attorney-in-fact and agent, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as each of them might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or either of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Walter V. Klemp Chairman of the Board, Co-Chief July 6, 1998
- ----------------------------- Executive Officer and Director
Walter V. Klemp (Principal Executive Officer)
/s/ Terry A. Tognietti Co-Chief Executive Officer, July 6, 1998
- ----------------------------- President - Drypers North
Terry A. Tognietti America and Director
/s/ Raymond M. Chambers Co-Chief Executive Officer, July 6, 1998
- ----------------------------- President - Drypers International
Raymond M. Chambers and Director
/s/ Philip A. Tuttle Director July 6, 1998
- -----------------------------
Philip A. Tuttle
/s/ Nolan Lehmann Director July 6, 1998
- -----------------------------
Nolan Lehmann
/s/ Gary L. Forbes Director July 6, 1998
- -----------------------------
Gary L. Forbes
/s/ Jonathan P. Foster Executive Vice President and July 6, 1998
- ----------------------------- Chief Financial Officer (Principal
Jonathan P. Foster Financial Officer and Principal
Accounting Officer)
</TABLE>
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Administration Committee of the Drypers Corporation 401(k) Plan has duly caused
this Registration Statement to be signed on its behalf by the undersigned
members of such committee, thereunto duly authorized, in the City of Houston,
State of Texas, on July 6, 1998.
DRYPERS CORPORATION 401(K) PLAN
By: /s/ Walter V. Klemp
----------------------------------
Walter V. Klemp
By: /s/ Terry A. Tognietti
----------------------------------
Terry A. Tognietti
By: /s/ Jonathan P. Foster
----------------------------------
Jonathan P. Foster
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
*3.1 Restated Certificate of Incorporation of Drypers Corporation,
as amended (Filed as Exhibit 3.1 to Form S-4/A filed June 8,
1998, Registration Statement No. 333-52597).
*3.2 Bylaws of Drypers Corporation, as amended, dated January 21,
1994 (Filed as Exhibit 3.2 to Form S-1 filed January 26,
1994, Registration Statement No. 33-74436).
*4.1 Form of Common Stock Certificate (Filed as Exhibit 4.2 to
Form S-1 filed January 26, 1994, Registration Statement No.
33-74436).
*4.2 Forms of Warrants (Filed as Exhibit 4.37 to Form S-1 filed
October 8, 1993, Registration Statement No. 33-70098).
*+4.3 Form of Nonqualified Stock Option Agreement, as amended,
entitling the persons listed on Schedule 4.9 to purchase an
aggregate of 125,000 shares of Common Stock (Filed as Exhibit
4.9 to Amendment No. 1 to Form S-1 filed February 17, 1994,
Registration Statement No. 33-74436).
*+4.4 Form of Nonqualified Stock Option Agreement, as amended,
entitling the persons listed on Schedule 4.10 to purchase an
aggregate of 93,750 shares of Common Stock (Filed as Exhibit
4.10 to Amendment No. 1 to Form S-1 filed February 17, 1994,
Registration Statement No. 33-74436).
*+4.5 Form of Nonqualified Stock Option Agreement dated April 9,
1993, entitling the persons listed on Schedule 4.11 to
purchase an aggregate of 71,875 shares of Common Stock (Filed
as Exhibit 4.11 to Form S-1 filed January 26, 1994,
Registration Statement No. 33-74436).
*+4.6 Form of Nonqualified Stock Option Agreement dated October 1,
1992, entitling the persons listed on Schedule 4.13 to
purchase an aggregate of 45,000 shares of Common Stock (Filed
as Exhibit 4.13 to Form S-1 filed January 26, 1994,
Registration Statement No. 33-74436).
*+4.7 Form of Nonqualified Stock Option Agreement dated December
31, 1993, entitling the persons listed on Schedule 4.16 to
purchase an aggregate of 31,250 shares of Common Stock (Filed
as Exhibit 4.16 to Form S-1 filed January 26, 1994,
Registration Statement No. 33-74436).
*4.8 Form of Investment and Stock Registration Agreement dated
November 10, 1992, by and among the Company and the persons
listed on Schedule 4.34 attached thereto (Filed as Exhibit
4.34 to Form S-4 filed November 20, 1992, Registration
Statement No. 33-54810).
*4.9 Rights Agreement dated January 20, 1995 by and between
Drypers Corporation and ChaseMellon Shareholder Services,
L.L.C. (Filed as Exhibit 4.20 to Form 10-K filed March 31,
1997, Commission File No. 0-23422).
*4.10 Rights Agreement Amendment dated as of February 26, 1996, by
and between Drypers Corporation and ChaseMellon Shareholder
Services, L.L.C. (Filed as Exhibit 4.20 to Form 10-K filed
March 31, 1997, Commission File No. 0-23422).
*4.11 Indenture dated as of June 15, 1997, between Drypers
Corporation and Bankers Trust Company, as Trustee (Filed as
Exhibit 4.1 to Form 10-Q filed August 12, 1997, Commission
File No. 0-23422).
*4.12 First Supplemental Indenture dated as of March 6, 1998,
between Drypers Corporation and Bankers Trust Company, as
Trustee.
*4.13 VRG Holding Corporation 1992 Incentive Stock Option Plan, as
amended (Filed as Exhibit 10.14 to Amendment No. 1 to Form
S-1 filed February 17, 1994, Registration Statement No.
33-74436).
*+4.14 VRG Holding Corporation 1991 Nonqualified Stock Option Plan
(Filed as Exhibit 10.15 to Form S-4 filed November 20, 1992,
Registration Statement No. 33-54810).
<PAGE>
*4.15 Memorandum of Preferred Stock Purchase Agreement dated July
31, 1994, by and among Drypers Corporation, Seler S.A.,
Ricardo Marcelo Albamonte and Alfred Garcia Bernal (Filed as
Exhibit 10.1 to Form 10-Q filed August 15, 1994, Commission
File No. 0-23422).
*4.16 Drypers Corporation 1995 Key Employee Stock Option Plan
(Filed as Exhibit 10.1 to Form 10-Q filed August 4, 1995,
Commission File No. 0-23422).
*4.17 Drypers Corporation 1994 Non-Employee Director Option Plan
(Filed as Exhibit 10.2 to Form 10-Q filed August 4, 1995,
Commission File No. 0-23422).
*4.18 Form of Drypers Corporation 1995 Key Employee Stock Option
Plan Nonqualified Stock Option Agreement (Filed as Exhibit
10.3 to Form 10-Q filed August 4, 1995, Commission File
No. 0-23422).
*4.19 Form of Drypers Corporation 1995 Key Employee Stock Option
Plan Incentive Stock Option Agreement (Filed as Exhibit 10.4
to Form 10-Q filed August 4, 1995, Commission File No.
0-23422).
*+4.20 Drypers Corporation Amended and Restated 1995 Key Employee
Stock Option Plan. (Filed as Exhibit 10.28 to Amendment No. 1
to Form S-4 filed September 15, 1997, Registration Statement
No. 333-34071).
*+4.21 Drypers Corporation 1996 Non-Employee Director Stock Option
Plan. (Filed as Exhibit 10.29 to Amendment No. 1 to Form S-4
filed September 15, 1997, Registration Statement No.
333-34071).
*+4.22 First Amendment to Drypers Corporation Amended and Restated
1995 Key Employee Stock Option Plan. (Filed as Exhibit 10.30
to Amendment No. 1 to Form S-4 filed September 15, 1997,
Registration Statement No. 333-34071).
*4.23 Drypers Corporation 401(k) Plan (Filed as Exhibit 10.25 to
Amendment No. 1 to Form S-1 filed February 17, 1994,
Registration Statement No. 33-74436).
4.24 First Amendment to Drypers Corporation 401(k) Plan.
4.25 Second Amendment to Drypers Corporation 401(k) Plan.
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Fulbright & Jaworski, L.L.P. (contained in Exhibit
5.1).
24.1 Powers of Attorney (See page II-6).
- --------
* Incorporated by reference to the filing indicated.
+ Management contract or compensatory plan or arrangement.
<PAGE>
EXHIBIT 4.24
FIRST AMENDMENT TO
DRYPERS CORPORATION 401(K) PLAN
WITNESSETH:
WHEREAS, on June 28, 1994, the Sponsor executed the Plan Agreement known as
"Drypers Corporation 401(k) Plan" (the "Plan"); and
WHEREAS, the Sponsor retained the right in Section 11.1 of the Plan to
amend the Plan from time to time; and
WHEREAS, the Board of Directors of the Sponsor approved resolutions on the
8th day of July 1996, to amend the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Section 3.1 of the Plan is amended in its entirety effective August 1,
1996, to read as follows:
3.1 ELIGIBILITY REQUIREMENTS. Effective August 1, 1996, each
Employee shall be eligible to participate in this Plan beginning on the
first day of the month which starts with or next follows the later of (a)
the effective date of the adoption of this Plan by the Employer, (b) the
date the Employee attains age 18 or (c) the date during the Computation
Period on which the Employee completes 1,000 Hours of Employment in that
Computation Period, but in no event less than six months from the
Employee's first day of employment. However, all Employees who are
included in a unit of Employees covered by a collective bargaining
agreement between the Employees' representative and the Employer shall be
excluded, even if they have met the requirements for eligibility, if there
has been good faith bargaining between the Employer and the Employees'
representative and the collective bargaining agreement does not require the
Employer to include those Employees in this Plan.
2. Section 4.10 of the Plan is amended effective January 1, 1991, by
deleting the last paragraph thereof and substituting the following:
If the limitation would be exceeded for any Plan Year, before the
close of the following Plan Year the Actual Deferral Percentage or
Contribution Percentage of the eligible Highly Compensated Employees, or a
combination of both, shall be reduced by distributions made in the manner
described in the Regulations. These distributions shall be in addition to
and not in lieu of distributions required for Excess 401(k) Contributions
and Excess Aggregate 401(m) Contributions.
<PAGE>
IN WITNESS WHEREOF, the Sponsor has executed this Agreement this
8th day of July, 1996.
DRYPERS CORPORATION
By /s/ Walter V. Klemp
---------------------------------------
Walter V. Klemp
Chairman and Co-Chief Executive Officer
-2-
<PAGE>
EXHIBIT 4.25
SECOND AMENDMENT TO
DRYPERS CORPORATION 401(K) PLAN
THIS AGREEMENT by Drypers Corporation (the "Sponsor"),
WITNESSETH:
WHEREAS, on June 28, 1994, the Sponsor executed the Plan and Trust
Agreement known as "Drypers Corporation 401(k) Plan" (the "Plan"); and
WHEREAS, the Sponsor retained the right in Section 11.1 of the Plan to
amend the Plan from time to time; and
WHEREAS, the Board of Directors of the Sponsor approved resolutions on the
22nd day of June 1998, to amend the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective January 1, 1997,
unless a different effective date is expressly stated or required by law, as
follows:
1. Section 3.1 is deleted in its entirety and the following shall be
substituted in its place:
3.1 ELIGIBILITY REQUIREMENTS. Each Employee shall be eligible to
participate in this Plan beginning on the first day of the calendar quarter
which starts with or next follows the later of (a) the effective date of
the adoption of this Plan by the Employer, (b) the date the Employee
attains age 18 or (c) the date during the Computation Period on which the
Employee completes 1,000 Hours of Employment in that Computation Period,
but in no event less than six months from the Employee's first day of
employment. However, all Employees who are included in a unit of Employees
covered by a collective bargaining agreement between the Employees'
representative and the Employer shall be excluded, even if they have met
the requirements for eligibility, if there has been good faith bargaining
between the Employer and the Employees' representative and the collective
bargaining agreement does not require the Employer to include those
Employees in this Plan.
2. Section 4.3(f) is deleted in its entirety and the following shall be
substituted in its place:
(f) an amount, if any, which is designated by the Board of Directors
to be the Employer Discretionary Contribution for the Plan Year, which
amount may be contributed all in Company Stock, all in cash, or in any
combination thereof as determined in the discretion of the Board of
Directors. "Company Stock" means the common stock of Drypers
<PAGE>
Corporation, $.001 par value of Drypers Corporation. Company Stock shall be
valued for this purpose as of the date of contribution.
3. Section 5.3(f) is deleted in its entirety and the following shall be
substituted in its place:
(f) allocate the Employer Discretionary Contribution, if any, among
the Members who are eligible to participate, who are credited with at least
1,000 Hours of Employment for the Plan Year, and who are employed by one of
the Employers or Affiliated Employers at the end of the Plan Year or became
disabled, died or retired during the Plan Year, based upon each Member's
Considered Compensation for the Plan Year as compared to the Considered
Compensation of all Members employed by the Employer or Affiliated Employer
and entitled to an allocation pursuant to this Section 5.3(f) for the Plan
Year.
4. Section 5.3 is amended by adding the following subsections following
5.3(g):
(h) allocate the cash and Company Stock dividends paid with respect to
Company Stock when received among the Members and former Members with
Account balances in Company Stock in proportion to the number of shares of
Company Stock (of the class with respect to which the dividend is paid)
allocated to Member's or former Member's Accounts as of the record date for
the dividend.
(i) if the shares of Company Stock are subdivided, allocate the
additional shares acquired by the Trustee upon the subdivision when
received among the Members and former Members with Account balances in
Company Stock in proportion to the number of shares of Company Stock (of
the class with respect to which the subdivision is made) allocated to the
Member's or former Member's Accounts as of the record date for the
subdivision.
5. Effective July 1, 1998, Sections 5.4, 6.10, 6.15, and 11.8 are hereby
amended to increase the maximum account balance of a Member subject to
involuntary cash out from $3,500 to $5,000 by substituting $5,000 for $3,500
each time it appears.
6. Section 6.1 is deleted in its entirety and the following shall be
substituted in its place:
6.1 VALUATION OF ACCOUNTS FOR WITHDRAWALS AND DISTRIBUTIONS.
Normally, for the purpose of making a distribution or withdrawal, a
Member's Accounts shall be his Accounts as valued as of the Valuation Date
which is coincident with or next preceding the withdrawal, adjusted only
for Contributions, distributions and withdrawals, if any, made between the
Valuation Date and the date of distribution; provided, if the valuation is
made on a daily basis as of each business day, the Accounts shall be valued
as of the withdrawal or distribution. However, for
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purposes of making a distribution or withdrawal of the Member's or former
Member's interest in the Company Stock Fund, the value of shares of Company
Stock allocated to the Member's or former Member's Account shall be the net
cash proceeds of the sale of the Company Stock when the Trustee sells it in
order to make the distribution or withdrawal.
7. Section 6.10 is amended by adding subsection (d) immediately after
subsection (c), as follows:
(d) Notwithstanding the provisions of this Section 6.10, the Member's
vested portion of his Accounts which is invested in the Company Stock Fund
shall be distributed in cash, as elected in subsections (a)-(c) above,
valued at the net proceeds received from the sale of the Company Stock.
8. Section 9.1 is amended by adding the following sentence at the end of
such Section as follows:
The Plan may be funded under a group annuity contract, or may be
funded under a group annuity contract and one or more trusts, each of which
is referred to herein as a "Trust."
9. The Plan is amended by inserting a new Article XIII and XIV effective
as follows:
ARTICLE XIII
INVESTMENT ELECTIONS
13.1 INVESTMENT FUNDS ESTABLISHED. It is contemplated that the
assets of this Plan shall be invested in such categories of assets as may
be determined from time to time by the Committee and announced and made
available on an equal basis to all Members and former Members. All amounts
contributed to a Member's Employer Discretionary Contribution Account in
the form of Company Stock shall be deposited in the Company Stock Fund and
shall remain invested in the Company Stock fund until the Member or former
Member instructs the Trustee to transfer all or a portion of such amount to
other investment funds in accordance with procedures established by the
Committee. In accordance with procedures established by the Committee,
each Member and former Member may designate the percentage [or amount] of
his Account balances (except as specified above), to be invested in each
investment fund available under the Plan. Up to one hundred percent (100%)
of the Trust assets may be invested in Company Stock.
13.2 ELECTION PROCEDURES ESTABLISHED. The Committee shall, from
time to time, establish rules to be applied in a nondiscriminatory manner
as to all matters relating to the administration of the investment of funds
including, but not limited to, the following:
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(a) The percentage or amount of a Member's or former Member's
Account as it exists, from time to time, that may be transferred from
one fund to another and the limitations based on amounts, percentages,
time, or frequency, if any, on such transfers;
(b) The percentage of a Member's future contributions, when
allocated to his Account, that may be invested in any one or more
funds and the limitations based upon amounts, percentages, time, or
frequency, if any, on such investments in various funds;
(c) The procedures for making investment elections and changing
existing investment elections;
(d) The period of notice required for making investment
elections and changing existing investment elections;
(e) The handling of income and change of value in funds when
funds are in the process of being transferred between investment funds
and to investment funds; and
(f) All other matters necessary to permit the orderly operation
of investment funds within the Plan.
When the Committee changes any previous applicable rule, it shall state the
effective time of the change and the procedures for complying with any such
change. Any change shall remain effective until such date as stated in the
change, or if none is stated, until revoked or changed in a like manner.
ARTICLE XIV
VOTING OF COMPANY STOCK AND TENDER OFFERS
14.1 VOTING OF COMPANY STOCK. When the Company files preliminary or
final proxy solicitation materials with the Securities and Exchange
Commission, the Company shall cause a copy of all materials to be
simultaneously sent to the Trustee. Based on these materials, the Trustee
shall prepare a voting instruction form. At the time of mailing of notice
of each annual or special stockholders' meeting of the Company, the Company
shall cause a copy of the notice and all proxy solicitation materials to be
sent to each Member with an interest in Company Stock held in the Trust,
together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the number of full and
fractional shares of the Company Stock credited to each Member's or former
Member's Account. The Company shall provide the Trustee with a copy of any
materials provided to the Members and shall certify to the Trustee that the
materials have been mailed or otherwise sent to the Members and former
Members.
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Each Member and former Member with an interest in Company Stock held in the
Trust shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote the number of shares of the Company Stock reflecting such
Member's or former Member's proportional interest in the Company Stock held in
the Trust (both vested and unvested). Directions from a Member or former Member
to the Trustee concerning the voting of the Company Stock shall be communicated
in writing, or by mailgram or similar means. These directions shall be held in
confidence by the Trustee and shall not be divulged to the Company, or any
officer or employee thereof, or any other person except to the extent that the
Company must have the safeguarded information in order to comply with Federal
laws or State laws not preempted by ERISA. Upon its receipt of the directions,
the Trustee shall vote the shares of the Company Stock reflecting the Member's
or former Member's proportional interest in the Company Stock held in the Trust
as directed by the Member or former Member. The Trustee shall vote shares of the
Company Stock reflecting such Member's or former Member's proportional interest
in the Company Stock held in the Trust (both vested and unvested) for which it
has received no directions from the Member or former Member in the same
proportion on each issue as it votes those shares for which it received voting
directions from Members and former Members. The Trustee shall vote shares of the
Company Stock not credited to Members' or former Members' Accounts in the same
proportion on each issue as it votes those shares credited to Members' and
former Members' Accounts for which it received voting directions from Members
and former Members.
14.2 TENDER OFFERS. Upon commencement of a tender offer for any
securities held in the Trust that constitute Company Stock, the Company
shall notify each Member and former Member of the tender offer and utilize
its best efforts to timely distribute or cause to be distributed to each
Member and former Member the same information that is distributed to other
stockholders of the Company in connection with the tender offer, and, after
consulting with the Trustee, shall provide and pay for a means by which the
Member or former Member may direct the Trustee whether or not to tender the
Company Stock credited to the Member's or former Member's vested and
unvested Accounts. The Company shall provide the Trustee with a copy of
any material provided to the Members and former Members and shall certify
to the Trustee that the materials have been mailed or otherwise sent to
Members and former Members.
Each Member and former Member shall have the right to direct the
Trustee to tender or not to tender some or all of the shares of the Company
Stock reflecting his proportional interest in the Company Stock held in the
Trust (both vested and unvested). Directions from a Member or former
Member to the Trustee concerning the tender of the Company Stock shall be
communicated in writing, or by mailgram or such similar means as is agreed
upon by the Trustee and the Company under the
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preceding paragraph. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Company, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the performance
of the Trustee's services hereunder. The Trustee shall tender or not tender
shares of Company Stock as directed by the Member or former Member. To the
extent that Members or former Members fail to affirmatively direct the
Trustee or fail to issue valid directions to the Trustee to tender shares
of the Company Stock credited to their Accounts, those Members or former
Members will be deemed to have instructed the Trustee not to tender those
shares. Accordingly, the Trustee shall not tender shares of Company Stock
credited to a Member's or former Member's Accounts for which it has
received no directions or invalid directions from the Member or former
Member.
The Trustee shall tender that number of shares of the Company Stock
not credited to Members' or former Members' Accounts which is determined by
multiplying the total number of shares of the Company Stock not credited to
Members' or former Members' Accounts by a fraction of which the numerator
is the number of shares of the Company Stock credited to Members' or former
Members' accounts for which the Trustee has received valid directions from
Members or former Members to tender (which directions have not been
withdrawn as of the date of this determination) and of which the
denominator is the total number of shares of the Company Stock credited to
Members' or former Members' Accounts.
A Member or former Member who has directed the Trustee to tender some
or all of the shares of the Company Stock credited to the Member's or
former Member's Accounts may, at any time prior to the tender offer
withdrawal date, direct the Trustee to withdraw some or all of the tendered
shares, and the Trustee shall withdraw the directed number of shares from
the tender offer prior to the tender offer withdrawal deadline. Prior to
the withdrawal deadline, if any shares of the Company Stock not credited to
Members' or former Members' Accounts have been tendered, the Trustee shall
redetermine the number of shares of the Company Stock that would be
tendered under this Section if the date of the foregoing withdrawal were
the date of determination, and withdraw from the tender offer the number of
shares of the Company Stock not credited to Members' or former Members'
Accounts necessary to reduce the amount of tendered Company Stock not
credited to Members' or former Members' Accounts to the amount so
redetermined. A Member or former Member shall not be limited as to the
number of directions to tender or withdraw that the Member or former Member
may give to the Trustee.
A direction by a Member or former Member to the Trustee to tender
shares of the Company Stock reflecting the Member's or former
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Member's proportional interest in the Company Stock held in the Trust shall
not be considered a written election under the Plan by the Member or former
Member to withdraw, or have distributed, any or all of his withdrawable
shares. The Trustee shall credit to each proportional interest of the
Member or former Member from which the tendered shares were taken the
proceeds received by the Trustee in exchange for the shares of the Company
Stock tendered from that interest.
14.3 SHARES CREDITED. For all purposes of this Article, the number
of shares of the Company Stock deemed "credited" to a Member's or former
Member's Accounts as of the relevant date (the record date or the date
specified in the tender offer) shall be calculated by reference to the
number of shares reflected on the books of the transfer agent to the credit
of the Plan as of the relevant date. In the case of a tender offer, the
number of shares credited shall be determined as of a date as close as
administratively feasible to the relevant date.
14.4 CONVERSION. All provisions in this Article shall also apply to
any securities received as a result of a conversion of the Company Stock.
14.5 NAMED FIDUCIARY. For purposes of ERISA, each Member or former
Member shall be the named fiduciary for purposes of Section 403(a)(1) of
ERISA in connection with the exercise of voting and tender offer rights
relating to shares of the Company Stock credited to the his Accounts and
any shares of the Company Stock not credited to his Accounts that may be
affected by his voting or tender decision.
IN WITNESS WHEREOF, the Sponsor has executed this Agreement this
22nd day of June, 1998.
DRYPERS CORPORATION
By /s/ Jonathan P. Foster
------------------------------------
Jonathan P. Foster
Executive Vice President and
Chief Financial Officer
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EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD APPEARS HERE]
July 6, 1998
Drypers Corporation
5300 Memorial Drive, Suite 900
Houston, Texas 77007
Ladies and Gentlemen:
We have acted as counsel to Drypers Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of an aggregate of 750,000 shares of the Company's
common stock, $.001 par value (the "Shares"), to be offered upon the terms and
subject to the conditions set forth in the Drypers Corporation 401(k) Plan, as
amended (the "Plan").
In connection therewith, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Restated Certificate of
Incorporation of the Company, as amended, the By-laws of the Company, as
amended, the Plan, records of relevant corporate proceedings with respect to the
offering of the Shares and such other documents, instruments and corporate
records as we have deemed necessary or appropriate for the expression of the
opinions contained herein. We also have examined the Company's Registration
Statement on Form S-8 dated July 6, 1998 (the "Registration Statement"), to be
filed with the Securities and Exchange Commission with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based on the foregoing, and having regard for such legal considerations as
we have deemed relevant, we are of the opinion that the Shares have been duly
and validly authorized for issuance and, when issued in accordance with the
terms of the Plan, will be duly and validly issued, fully paid and
nonassessable.
The opinions expressed herein relate solely to, are based solely upon and
are limited exclusively to the General Corporation Law of the State of Delaware
and the federal laws of the United States of America, to the extent applicable.
<PAGE>
July 6, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Interests
of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
<PAGE>
EXHIBIT 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
March 18, 1998, included in Drypers Corporation's Form 10-K for the fiscal year
ended December 31, 1997, as amended, and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
July 6, 1998
