As filed with the Securities and Exchange Commission on March 5, 1998
Registration No. 333-____
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------------
IVEX PACKAGING CORPORATION
(Exact name of registrant as specified in its charter)
------------------------
DELAWARE 76-0171625
(State of incorporation) (I.R.S. employer identification number)
100 TRI-STATE DRIVE, SUITE 200
LINCOLNSHIRE, ILLINOIS 60069
(Address of principal executive offices, including zip code)
IVEX PACKAGING CORPORATION 1997 LONG TERM STOCK INCENTIVE PLAN
AMENDED AND RESTATED IPC, INC. (FORMERLY NAMED IVEX PACKAGING
CORPORATION) STOCK OPTION AND PURCHASE AGREEMENT
(FULL TITLE OF THE PLANS)
G. Douglas Patterson
Vice President and General Counsel
Ivex Packaging Corporation
100 Tri-State Drive, Suite 200
Lincolnshire, Illinois 60069
(847) 945-9100
(Name, address and telephone number, including area code,
of agent for service)
------------------------
With Copies To:
William R. Kunkel, Esq.
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive
Chicago, Illinois 60601
(312) 407-0700
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share (1)(2) Price (2) Fee (3)
------------------- ------------ ----------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, 4,931,200(4) $ 24.94 $ 122,984,128 $ 36,280
par value $.01
per share
</TABLE>
(1) In accordance with Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee, the maximum offering price per
share is based on the average of the high and low sale prices for a
share of common stock of Ivex Packaging Corporation (the "Common
Stock") on the Composite Tape of the New York Stock Exchange on
March 3, 1998.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act.
(4) Includes (i) 2,000,000 shares of Common Stock available for issuance
under the Ivex Packaging Corporation 1997 Long Term Stock Incentive
Plan (the "Stock Incentive Plan") and (ii)(a) 817,067 shares of
Common Stock available for issuance pursuant to options to purchase
Common Stock and (b) 2,114,133 shares of Common Stock issued under
the Amended and Restated IPC, Inc. (formerly named Ivex Packaging
Corporation) Stock Option and Purchase Agreement (the "Stock Option
and Purchase Agreement"), plus such additional number of shares of
Common Stock as may be issuable to prevent dilution under such plans.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, Ivex Packaging
Corporation, a Delaware corporation (the "Company"), pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this registration statement:
(1) Each of the Company's prospectuses, dated September 30, 1997,
which were filed with the Commission on October 2, 1997, pursuant to Rule
424(b) under the Securities Act and which constitute a part of the
Company's registration statement on Form S-1 (Registration No. 33-95436)
(the "S-1 Prospectuses").
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997.
(3) There are no other reports filed pursuant to Section 13(a) or
Section 15(d) of the Exchange Act.
(4) The description of the Common Stock contained in the S-1
Prospectuses under "Description of Capital Stock," which is also
incorporated by reference in the Company's registration statement on Form
8-A, dated September 3, 1997, which was filed with the Commission
pursuant to Section 12(b) of the Exchange Act.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange 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 hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document which also
is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ninth of the Amended and Restated Certificate of
Incorporation of the Company empowers the Company to indemnify its
directors, officers, employees and agents to the extent and under the
circumstances permitted by the General Corporation Law of Delaware (the
"GCL").
The Amended and Restated By-Laws of the Company provide that
directors and officers shall be indemnified against liabilities arising
from their services as a director or officer of the Company to the
fullest extent permitted by law.
Section 145 of the GCL empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of the corporation) by reason of the fact that he is or
was a director, officer, employee or agent of the corporation or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or 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
the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
Section 145 also empowers a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted under similar standards, except that no indemnification may be made
in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless, and only to
the extent that, the Court of Chancery or the court in which such action
was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent that a director or
officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the corporation is empowered
to purchase and maintain insurance on behalf of a director or officer of
the corporation against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
The Company's Stock Option and Purchase Agreement provides that all
members of the committee administering such plan will not be liable for
any action or determination made in good faith with respect to the plan
or any award granted thereunder.
In addition, the Company maintains liability insurance coverage for
directors and officers, including, without limitation, coverage
applicable in certain situations where the Company cannot pursuant to the
GCL directly indemnify such directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the
Company has 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.
A list of exhibits is set forth on the Exhibit Index which
immediately precedes the exhibits and which is incorporated by reference
herein.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(2) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(3) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1) and (a)(2) 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 Company pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(b) 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
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) 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.
(d) 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 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.
(e) 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 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that is 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 has been signed on its behalf
by the undersigned, thereunto duly authorized in the City of Chicago,
State of Illinois, on this 27th day of February, 1998.
IVEX PACKAGING CORPORATION
(Registrant)
By: /s/ G. Douglas Patterson
----------------------------------
G. Douglas Patterson
Vice President and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints G. Douglas Patterson 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 attorney-in-fact and agent full
power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, 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 indicated on this 27th day of February 1998.
NAME TITLE DATE
---- ----- ----
/s/ George V. Bayly Chairman of the Board, February 27, 1998
- --------------------------- President and Chief
George V. Bayly Executive Officer
(Principal Executive
Officer)
/s/ Frank V. Tannura Vice President and February 27, 1998
- --------------------------- Chief Financial Officer
Frank V. Tannura and Director
(Principal Financial
Officer)
/s/ David E. Wartner Corporate Controller February 27, 1998
- --------------------------- (Principal Accounting
David E. Wartner Officer)
/s/ Glenn R. August Director February 27, 1998
- ---------------------------
Glenn R. August
/s/ James R. Comeaux Director February 27, 1998
- ---------------------------
James R. Comeaux
/s/ Anthony P. Scotto Director February 27, 1998
- ---------------------------
Anthony P. Scotto
/s/ William J. White Director February 27, 1998
- ---------------------------
William J. White
EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
3.1 Amended and Restated Certificate of Incorporation
of the Company (incorporated by reference to the
Company's Registration Statement on Form S-1
(Registration No. 33-95436)).
3.2 Amended and Restated By-Laws of the Company
(incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration
No. 33-95436)).
4.1 Form of certificate representing shares of Common
Stock (incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration
No. 33-95436)).
5 Opinion and consent of Skadden, Arps, Slate, Meagher &
Flom (Illinois).
23.1 Consent of Price Waterhouse LLP, independent auditors.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
(Illinois) (included in Exhibit 5).
24 Power of Attorney (included on the signature page
hereto).
99.1 Ivex Packaging Corporation 1997 Long Term Stock
Incentive Plan (incorporated by reference to the
Company's Registration Statement on Form S-1
(Registration No. 33-95436)).
99.2 Amended and Restated IPC, Inc. (formerly named Ivex
Packaging Corporation) Stock Option and Purchase
Agreement (incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration
No. 33-95436)).
February 27, 1998
Ivex Packaging Corporation
100 Tri-State Drive, Suite 200
Lincolnshire, IL 60069
Re: Registration Statement on Form S-8
of Ivex Packaging Corporation
Ladies and Gentlemen:
We have acted as special counsel to Ivex Packaging Corporation, a
Delaware corporation (the "Company"), in connection with the preparation of
a Registration Statement on Form S-8, which is being filed by the Company
with the Securities and Exchange Commission (the "Commission") on the date
hereof (the "Registration Statement"), relating to the registration and
issuance by the Company under the Securities Act of 1933, as amended (the
"Act"), of up to an aggregate of 4,931,200 shares (the "Shares") of the
Company's Common Stock, par value $.01 per share (the "Common Stock"),
including (i) 2,000,000 shares of Common Stock available for issuance under
the Company's 1997 Long-Term Stock Incentive Plan (the "Stock Incentive
Plan") and (ii)(a) 817,067 shares of Common Stock available for issuance
pursuant to options to purchase Common Stock and (b) 2,114,133 shares of
Common Stock issued under the Amended and Restated IPC, Inc. (formerly
named Ivex Packaging Corporation) Stock Option and Purchase Agreement (the
"Stock Option and Purchase Agreement," and, together with the Stock
Incentive Plan, the "Plans").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement; (ii) each of the Plans; (iii) the Amended and
Restated Certificate of Incorporation and the Amended and Restated By-Laws
of the Company, as presently in effect; (iv) a specimen certificate
representing the Common Stock; and (v) copies of certain resolutions of the
Board of Directors of the Company relating to the Plans, the Shares and
related matters. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company
and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and such other
documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed, and have not independently
established or verified, the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than
the Company, we have assumed that such parties had or will have the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and representations
of officers and other representatives of the Company and others. We assume
that the Company will have at the time of the issuance of any Shares under
the Plans at least that number of authorized but unissued shares of Common
Stock equal to the number of Shares to be issued pursuant to the Plans.
Members of our firm are admitted to the practice of law in the
State of Illinois, and we do not express any opinion as to the laws of any
other jurisdiction other than the Delaware General Corporation Law.
Based upon and subject to the foregoing, and assuming the
conformity of the certificates representing the Shares to the form of the
specimen thereof examined by us and the due execution of such certificates,
we are of the opinion that the Shares have been duly authorized by
requisite corporate action by the Company, and, when issued, delivered and
paid for in accordance with the terms and conditions of the Plans, will be
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. We also consent to
the reference to our firm under the heading "Interests of Named Experts and
Counsel" in the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER
& FLOM (Illinois)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 21, 1997, except as to
Notes 5 and 14, which are as of March 24, 1997, appearing on page 22 of
Ivex Packaging Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996.
Price Waterhouse LLP
February 18, 1998
