As filed with the Securities and Exchange Commission on June 28, 2000
Registration No. ______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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IVEX PACKAGING CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE
(State of incorporation)
76-0171625
(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 1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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)
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With Copies To:
William R. Kunkel, Esq.
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive
Chicago, Illinois 60606
(312) 407-0700
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered per Share (2)(3) Price (3) Fee (4)
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<S> <C> <C> <C> <C> <C>
Common Stock, par vale $.01 per share 1,500,000 (1) $9.47 $14,203,125 $3,750.12
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(1) Represents the number of shares of common stock, par value $.01
per share ("Common Stock") of Ivex Packaging Corporation (the
"Company") available for issuance under the 1999 Employee Stock
Purchase Plan (the "Plan"), plus such additional number of shares
of Common Stock as may be issuable to prevent dilution under the
Plan.
(2) 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 June 23, 2000.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) The registration fee has been calculated pursuant to Section 6(b) of
the Securities Act.
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EXPLANATORY NOTE
Ivex Packaging Corporation, a Delaware corporation (the "Company")
has prepared this Registration Statement in accordance with the
requirements of Form S-8 under the Securities Act, to register shares of
Common Stock, issuable pursuant to the Company's 1999 Employee Stock
Purchase Plan, (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The Company will send or give the documents containing the
information specified in Part I of Form S-8 to employees as specified by
the Securities and Exchange Commission Rule 428(b)(1) under the Securities
Act of 1933 (the "Securities Act"). Pursuant to Rule 424 of the Securities
Act, the Company is not required to file these documents with the
Securities and Exchange Commission (the "Commission") as a part of this
Registration Statement or as prospectuses or prospectus supplements.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by the Company and pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed with the Commission on March 27, 2000.
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, filed with the Commission on May 12, 2000.
(3) The Company's Current Report on Form 8-K, filed with the
Commission on June 8, 2000.
(4) The description of the Company's Common Stock as set forth on
the Registration Statements filed by the Company on Form 8-A (File No.
001-13968) on October 7, 1998 and March 3, 1999, both filed pursuant to
Section 12(b) of the Exchange Act, and any reports or amendments filed with
the Commission for the purpose of updating such description.
(5) There are no other reports filed pursuant to Section 13(a) or
Section 15(d) of the Exchange Act since the end of the last fiscal year
ended December 31, 1999.
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 the State 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.
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 Lincolnshire, State
of Illinois, on this 28th day of June, 2000.
IVEX PACKAGING CORPORATION
(Registrant)
By: /s/ G. Douglas Patterson
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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 28th day of June, 2000.
NAME TITLE DATE
---- ----- ----
/s/ George V. Bayly Chairman of the Board, June 28, 2000
------------------------- President and Chief
George V. Bayly Executive Officer
(Principal Executive
Officer)
/s/ Frank V. Tannura Executive Vice President, June 28, 2000
------------------------ Chief Financial Officer
Frank V. Tannura and Director (Principal
Financial Officer)
/s/ David E. Wartner Vice President and Corporate June 28, 2000
------------------------ Controller (Principal
David E. Wartner Accounting Officer)
/s/ Glenn R. August Director June 28, 2000
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Glenn R. August
/s/ R. James Comeaux Director June 28, 2000
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R. James Comeaux
/s/ Anthony P. Scotto Director June 28, 2000
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Anthony P. Scotto
/s/ William J. White Director June 28, 2000
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William J. White
EXHIBIT INDEX
Exhibit No. Description of Exhibit
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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)).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom
(Illinois), counsel to the Company, regarding the legality
of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom (Illinois)
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page hereto).
99.1 Ivex Packaging Corporation 1999 Employee Stock Purchase Plan.
