As filed with the Securities and Exchange Commission
on August 13, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BUCKEYE TECHNOLOGIES INC.
(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)
MERFIN SYSTEMS 401(K) PROFIT SHARING PLAN
(Full Title of the Plan)
DAVID B. FERRARO
P.O. Box 80407
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
207 Mockingbird Lane
Johnson City, Tennessee 37604
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------ ---------------------- ------------------------- ------------------------- =======================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- ------------------------------ ---------------------- ------------------------- ------------------------- =======================
<S> <C> <C> <C> <C>
Plan Interests related to An Indeterminate N/A N/A $100
the Merfin Systems 401(K) Amount of Plan
Profit Sharing Plan Interests*
- ------------------------------ ---------------------- ------------------------- ------------------------- =======================
* Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement covers an indeterminate amount of plan interests to be offered or sold
pursuant to the Merfin Systems 401(K) Profit Sharing Plan described herein.
</TABLE>
<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, 1997.
2. The Registrant's Quarterly Report on Form 10-Q for the quarters ended
September 30, 1997, December 31, 1997 and March 31, 1998.
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.
<PAGE>
The Company's Second 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 Second 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.
<PAGE>
Item 8. EXHIBITS
Exhibit
Number Description
- ------- -----------
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
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.
<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 11th day of
August 1998.
BUCKEYE TECHNOLOGIES INC.
By: /s/ ROBERT E. CANNON
---------------------------------------------
Robert E. Cannon, Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS 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
- ------------------------------------ August 12, 1998
Robert E. Cannon Chairman of the Board of
Directors, Chief Executive Officer and
Director (Principal Executive Officer)
/s/ DAVID B. FERRARO
- ------------------------------------ August 12, 1998
David B. Ferraro President, Chief Operating
Officer and Director
(Principal Financial Officer)
/s/ DAVID H. WHITCOMB
- ------------------------------------ August 12, 1998
David H. Whitcomb Senior Vice President,
Finance and Accounting
(Principal Accounting Officer)
/s/ R. HOWARD CANNON
- ------------------------------------ August 12, 1998
R. Howard Cannon Director
/s/ RED CAVANEY
- ------------------------------------ August 12, 1998
Red Cavaney Director
/s/ HENRY F. FRIGON
- ------------------------------------ August 12, 1998
Henry F. Frigon Director
/s/ SAMUEL M. MENCOFF
- ------------------------------------ August 12, 1998
Samuel M. Mencoff Director
- ------------------------------------
Harry J. Phillips, Sr. Director
EXHIBIT 5
OPINION AND CONSENT OF BAKER, DONELSON, BEARMAN & CALDWELL
A copy of the opinion letter and consent of counsel (Exhibit 23.1)
follows. In lieu of an opinion of counsel concerning compliance with the
requirements of ERISA and Section 401 of the Internal Revenue Code, the Company
undertakes that it has submitted or will submit the plan and any amendments
thereto to the Internal Revenue Service in a timely manner and has made or will
make all changes required by the Internal Revenue Service in order to qualify
the plan.
<PAGE>
August 11, 1998
Buckeye Technologies Inc.
P. O. Box 80407
1001 Tillman Street
Memphis, Tennessee 38108
RE: Merfin Systems 401(k) Profit Sharing Plan
Ladies and Gentlemen:
We have acted as securities counsel for Buckeye Technologies Inc., 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 Merfin Systems
401(k) Profit Sharing Plan (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
Plan confers legal interests upon employees participating in the Plan to the
extent and upon the terms and conditions described therein.
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, and to the reference to us in the Prospectus that is a
part of 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
/s/ LINDA M. CROUCH
-------------------------------
By: Linda M. Crouch
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Merfin Systems 401(K) Profit Sharing Plan of our
report dated August 7, 1997 with respect to the consolidated financial
statements of Buckeye Technologies Inc. incorporated by reference in its Annual
Report (Form 10-K) for the year ended June 30, 1997 and the related financial
statements schedule included therein, filed with the Securities and Exchange
Commission.
s/s ERNST & YOUNG LLP
---------------------
ERNST & YOUNG LLP
Memphis, Tennessee
August 10, 1998
