As filed with the Securities and Exchange Commission on December 23, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BUCKEYE CELLULOSE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 62-1518973
(State of Incorporation) I.R.S. Employer Identification No.)
1001 Tillman Street
Memphis, Tennessee 38108
(Address of principal executive offices)
BUCKEYE CELLULOSE CORPORATION
FORMULA PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
DAVID B. FERRARO
1001 Tillman Street
Memphis, Tennessee 38108
(901) 320-8100
(Name, address and telephone number of agent for service)
(with copies to:)
LINDA M. CROUCH
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, 2000 First Tennessee Building
Memphis, Tennessee 38103
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Title of Maximum Proposed Amount
Securities Amount Offering Maximum of
to be to be Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- --------------------------------------------------------------------------------
Common Stock 200,000 (1) 25.69 (2) $5,138,000 (2) $1,556.97
================================================================================
- --------
(1) The number of shares being registered under the Plan represents the
maximum number of shares which would be purchased if eligible
individuals elected to purchase all shares authorized under such Plan.
(2) Based on the average high and low prices of the Common Stock December
19, 1996, pursuant to Rule 457(h). The Plan provides for the purchase
of Common Stock at the fair market value on the dates of grants of
options under the Plan, which prices are presently indeterminable.
<PAGE>
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the year ended June 30, 1996.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
3. The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A, as amended, effective with the Commission on
November 22, 1995.
All documents subsequently filed by the Registrant 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 herein and to be a part thereof from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
No response is required to this item.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response is required to this item.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any person who is, 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 such corporation), by
reason of the fact that such person was an officer, director, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys, fees), judgments, fines and
amount paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was illegal. A
Delaware corporation may indemnify any person who is, 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 by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
- 2 -
<PAGE>
The Company's Amended and Restated Certificate of Incorporation provides
for the indemnification of directors and officers of the Company to the fullest
extent permitted by Section 145.
In that regard, the Amended and Restated Certificate of Incorporation
provides that the Company shall 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 he is or was a director or officer of such corporation, or is or was
serving at the request of such corporation as a director, officer or member 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 him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of such
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Indemnification in
connection with an action or suit by or in the right of such corporation to
procure a judgment in its favor is limited to payment of settlement of such an
action or suit except that no such indemnification may 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
indemnifying corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine that, despite the adjudication of liability but in consideration of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
No response is required to this item.
- 3 -
<PAGE>
Item 8. EXHIBITS
Exhibit
Number Description
- ------- -----------
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
10.1 Buckeye Cellulose Corporation Formula Plan for Non-Employee Directors
23.1 Consent of Baker, Donelson, Bearman & Caldwell (contained in Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (Included on signature page)
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such posteffective 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.
(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 the 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 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 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 foregoing provisions, 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.
- 4 -
<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 Memphis, State of Tennessee, on the 20th day of
December, 1996.
BUCKEYE CELLULOSE CORPORATION
By: /s/ ROBERT E. CANNON
-------------------------------------------
Robert E. Cannon, Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert E. Cannon and David B. Ferraro and each of
them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all 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 fully to all intents and purposes as
he might or could do in person thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes or
substitute, 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 below by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
/s/ ROBERT E. CANNON Chairman of the Board of December 20, 1996
- --------------------------- Directors, Chief Executive
Robert E. Cannon Officer and Director (Principal
Executive Officer)
/s/ DAVID B. FERRARO President, Chief Operating December 20, 1996
- --------------------------- Officer and Director (Principal
David B. Ferraro Financial Officer)
/s/ R. HOWARD CANNON Director December 20, 1996
- ---------------------------
R. Howard Cannon
/s/ SAMUEL M. MENCOFF Director December 20, 1996
- ---------------------------
Samuel M. Mencoff
/s/ RED CAVANEY Director December 20, 1996
- ---------------------------
Red Cavaney
-5-
<PAGE>
NAME TITLE DATE
/s/ HENRY F. FRIGON Director December 20, 1996
- ---------------------------
Henry F. Frigon
/s/ HENRY J. PHILLIPS, SR. Director December 20, 1996
- ---------------------------
Henry J. Phillips, Sr.
- 6 -
EXHIBIT 5
OPINION AND CONSENT OF BAKER, DONELSON, BEARMAN & CALDWELL
5-1
<PAGE>
December 20, 1996
Buckeye Cellulose Corporation
1001 Tillman Street
Memphis,Tennessee 38108
RE: Buckeye Cellulose Corporation Formula Plan for Non-Employee Directors
Gentlemen:
We have acted as securities counsel for Buckeye Cellulose Corporation, a
Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended, relating to the Company's Buckeye
Cellulose Corporation Formula Plan for Non-Employee Directors (the "Plan"). This
opinion is being furnished in response to Item 601 of Regulation S-K and the
instructions to Form S-8.
We are familiar with the proceedings to date with respect to the
proposed offering and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Delaware.
2. The Plan has been duly and validly authorized and adopted, and the
shares of Common Stock of the Company (the "Shares") that may be issued and sold
from time to time in accordance with the Plan have been duly authorized for
issuance and will, when issued, sold and paid for in accordance with the Plan,
be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and the laws of the State of Delaware, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we deem
such reliance appropriate as to certain matters on statements, representations
and other information obtained from public officials, officers of the Company
and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL,
a Professional Corporation
5-2
EXHIBIT 10.1
BUCKEYE CELLULOSE CORPORATION FORMULA PLAN FOR
NON-EMPLOYEE DIRECTORS
10.1-1
<PAGE>
BUCKEYE CELLULOSE CORPORATION
FORMULA PLAN FOR NON-EMPLOYEE DIRECTORS
1. Purpose. The purpose of the Buckeye Cellulose Corporation Formula
Plan for Non-Employee Directors (the "Plan") is to promote the interests of the
Company by providing an inducement to obtain and retain the services of
qualified persons who are neither employees nor officers of the Company to serve
as members of the Board.
2. Eligibility. An option to purchase shares of Common Stock shall
be granted to each Non-Employee Director pursuant to the terms of this Plan.
3. Limitation on Aggregate Shares. The number of shares of Common Stock
with respect to which options may be granted under this Plan and which may be
issued upon the exercise thereof shall not exceed, in the aggregate, 200,000
shares; provided, however, that if any options granted under this Plan expire
unexercised or unpaid or are cancelled, terminated or forfeited in any manner
without the issuance of Common Stock thereunder, the shares with respect to
which such options were granted shall be available under this Plan; provided
further, that the Non-Employee Director received no benefit of ownership from
such shares. Such shares of Common Stock may be either authorized and unissued
shares, treasury shares or a combination thereof, as the Committee or the Board
shall determine.
4. Options. Options granted under this Plan shall be subject to such
terms and conditions and evidenced by option agreements in such form as shall be
determined from time to time by the Committee or the Board and shall in any
event be subject to the terms and conditions set forth below and in paragraph 5:
(a) Grant of Options. An option to purchase 25,000 shares of
Common Stock shall automatically be granted to each Non-Employee
Director at the close of business on the date on which such Non-employee
Director is elected or appointed to the Board ("Grant").
(b) Option Price. The option exercise price per share of Common
Stock shall be 100% of the fair market value of a share of Common Stock
at the time of grant, which shall be the closing sales price of a share
of Common Stock on the date of grant on the New York Stock Exchange
("NYSE") or, if the NYSE is closed on that date, on the last preceding
date on which the NYSE was open for trading; but in no event will such
option exercise price be less than the par value of such a share of
Common Stock.
(c) Term of Options; Vesting. Subject to the terms and conditions
herein, each Grant shall expire on the tenth anniversary of the date of
such grant. A director may exercise an option received in the Grant only
to the extent it has become vested. Each Grant vests in part immediately
on the date of the grant and in additional amounts on the next
succeeding four (4) anniversary dates, if on such dates the option
holder is a director of the Company, according to the following
schedule:
Vesting Date Cumulative Amount
Vested
Immediately Upon Grant 5,000
First Anniversary Date 5,000
Second Anniversary Date 5,000
10.1-2
<PAGE>
Third Anniversary Date 5,000
Fourth Anniversary Date 5,000
(d) Exercise of Options. Options may be exercised (in full or in
part) only by written notice to the Company at its principal office
accompanied by payment, in cash, of the option exercise price or, in
lieu thereof, by tendering to the Company shares of Common Stock owned
by the person exercising the option and having a fair market value equal
to the cash exercise price applicable to such option, such fair market
value to be the closing sales price of a share of Common Stock on the
date of exercise on the NYSE or, if the NYSE is closed on that date, on
the last preceding date on which the NYSE was open for trading; but in
no event will such option exercise price less than the par value of such
a share of Common Stock.
5. Additional Provisions.
(a) Termination of Term of Directorship. All rights of a
Non-Employee Director pursuant to options granted hereunder shall expire
ninety (90) days after the date of his termination as a director for any
reason; provided, however, that upon the termination of a Non-Employee
Director's tenure as a result of death or disability, all outstanding
grants of options shall vest notwithstanding the original vesting
schedule and shall expire upon the first anniversary of the date of such
termination.
(b) Listing, Registration and Compliance with Laws and
Regulations. Each option shall be subject to the requirement that if at
any time the Committee or the Board shall determine, in its discretion,
that the listing, registration or qualification of the shares subject to
the option upon any securities exchange or under any state or federal
securities or other law or regulation, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition
to or in connection with the granting of such option or the issuance or
purchase of shares thereunder, no such option may be exercised or paid
in Common Stock, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Committee or the Board. The
holder of such option will supply the Company with such certificates,
representations and information as the Company shall request and shall
otherwise cooperate with the Company in obtaining such listing,
registration, qualification, consent or approval. The Committee or the
Board may at any time impose any limitations upon the exercise of an
option or the sale of the Common Stock issued upon exercise of an option
that, in the Committee's or the Board's discretion, are necessary or
desirable in order to comply with Section 16(b) of the Exchange Act and
the rules and regulations thereunder.
(c) Nontransferability of Options. Options may not be transferred
other than by will or the laws of descent and distribution or pursuant
to a qualified domestic relations order, as defined by ss. 1 et seq. of
the Code, Title I of ERISA or the rules thereunder, and, during the
lifetime of the person to whom they are granted, may be exercised only
by such person or his or her guardian or legal representative or
pursuant to a qualified domestic relations order.
(d) Adjustment for Change in Common Stock. The Company will make
such provision with respect to the Plan, including without limitation
adjustments in the number of shares which may thereafter be acquired
under the Plan, the number of shares subject to options under the Plan
or the purchase price specified in options outstanding under the Plan,
10.1-3
<PAGE>
or for the termination or continuation of options under the Plan, as it
may determine to be appropriate and equitable, in connection with any
stock dividend, stock split, or reverse stock split or combination or
other reduction in the number of issued common shares of the Company or
in connection with any merger, consolidation, reorganization, sale or
exchange of substantially all assets, change of control, spinoff or
other distribution of any assets of the Company or any subsidiary or all
of any portion of the interest of the Company in any subsidiary to the
stockholders, or dissolution of the Company.
(e) Sale of the Company. In the event of a merger of the Company
with or into another corporation constituting a change of control, a
sale of all or substantially all of the Company's assets or a sale of a
majority of the Company's outstanding voting securities (a "Sale of the
Company"), the options may be assumed by the successor corporation or a
parent of such successor corporation or substantially equivalent options
may be substituted by the successor corporation or a parent of such
successor corporation, and if the successor corporation does not agree
to assume the options or substitute options at least 10 days prior to
the Sale of the Company, then the options shall become immediately
exercisable and such options shall terminate if not exercised as of the
date of the Sale of the Company or other prescribed period of time.
(f) Liquidation of Dissolution. In the event of the liquidation
or dissolution of the Company, options shall terminate immediately prior
to the liquidation or dissolution.
(g) Taxes. The Company shall be entitled, if necessary or
desirable, to withhold (or secure payment from the Plan participant in
lieu of withholding) the amount of any withholding or other tax due from
the Company with respect to any shares issuable under this Plan, and the
Company may defer such issuance unless indemnified to its satisfaction.
6. Administration. This Plan shall be administered by the Committee or
the Board. The Committee or the Board shall have full power to construe and
interpret this Plan and options granted hereunder, to establish and amend rules
for its administration and to correct any defect or omission and to reconcile
any inconsistency in this Plan or in any option granted hereunder to the extent
the Committee or the Board deems desirable to carry this Plan or any option
granted hereunder into effect. Each member of the Board or the Committee, and,
to the extent provided by the Board or the Committee, any person to whom duties
or powers shall be delegated in connection with the Plan, shall incur no
liability with respect to any action taken or omitted to be taken in connection
with the Plan and shall be fully protected in relying in good faith upon the
advice of counsel, to the fullest extent permitted under applicable law.
7. Definitions.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" means a committee of the Board appointed thereby
to administer this Plan, or if no such committee is appointed, the
Board.
(d) "Common Stock" means shares of the Company's common stock,
$0.01 par value, or such other shares as are substituted therefor
pursuant to paragraphs 5(d) or (e).
(e) "Company" means Buckeye Cellulose Corporation.
(f) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
10.1-4
<PAGE>
(g) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(h) "Non-Employee Director" means any director of the Company (i)
who is not and who was not a director of the Company on the date this
Plan becomes effective pursuant to Section 10 hereof or (ii) after the
date this Plan becomes effective, is elected by the shareholders or
appointed by the Board of Directors pursuant to the bylaws of the
Company, and (iii) who is not an officer or employee of the Company or
its affiliates.
8. No Right to Continue as a Director. Neither the Plan nor the granting
of an option nor any other action taken pursuant to the Plan, shall constitute
or be evidence of any agreement or understanding, express or implied, that the
Company will retain a Non-Employee Director for any period of time, or at any
particular rate of compensation.
9. Non-Qualified Stock Options. All options granted under the Plan shall
be non-qualified options not entitled to special tax treatment under Code
Section 222, as may be amended from time to time.
10. Effective Date of the Plan. The Plan shall take effect May 15, 1996.
11. Termination and Amendment. The Board or the Committee shall, in its
discretion, have the power to amend the Plan from time to time to the fullest
extent permitted under the Delaware General Corporation Law as in effect at the
time of such amendment; provided however, that paragraphs 3 and 4(a) and (b)
shall not be amended more than once every six months (other than to comply with
the Code or ERISA or the rules thereunder). No amendment of the Plan may
materially and adversely affect any right of any participant with respect to any
option theretofore granted without such participant's written consent. No
options shall be granted hereunder after May 15, 2001.
10.1-5
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
23.2-1
<PAGE>
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Buckeye Cellulose Corporation Formula Plan for
Non-Employee Directors of our report dated August 8, 1996, except for Note 16,
as to which the date is September 1, 1996, with respect to the consolidated
financial statements and schedule of Buckeye Cellulose Corporation included in
the Annual Report (Form 10-K) for the year ended June 30, 1996.
Ernst & Young LLP
Memphis, Tennessee
December 17, 1996
23.2-2
