As filed with the Securities and Exchange Commission on February 22, 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 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 1999 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
(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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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================
Proposed Maximum Proposed Maximumn 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)
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<S> <C> <C> <C> <C>
Common Stock, 100,000(4) $8.625 $862,500 $227.70
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 February 16, 2000.
(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 100,000 shares of Common Stock available for issuance under the
Ivex Packaging Corporation 1999 Stock Option Plan for Non-Employee
Directors (the "Stock Option Plan"), plus such additional number of
shares of Common Stock as may be issuable to prevent dilution under this
plan.
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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) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, which was filed with the Commission on March 30, 1999.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
(i) March 31, 1999, which was filed with the Commission on May 3, 1999, (ii)
June 30, 1999, which was filed with the Commission on August 12, 1999 and
(iii) September 30, 1999, which was filed with the Commission on November 15,
1999.
(3) The Company's Current Report on Form 8-K which was filed with the
Commission on March 3, 1999.
(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 of which were 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, 1998.
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 the person 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) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation and, 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, such person 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) (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 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
(iii) 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)(i) and (a)(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 Company pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the 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 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) 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.
(c) 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 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 Lincolnshire, State of Illinois, on
this 22nd day of February, 2000.
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 and on the date indicated.
NAME TITLE DATE
---- ----- ----
/s/ George V. Bayly Chairman of the Board, February 22, 2000
- -------------------------- President and Chief
George V. Bayly Executive Officer
(Principal Executive
Officer)
/s/ Frank V. Tannura Vice President and Chief February 22, 2000
- -------------------------- Financial Officer and
Frank V. Tannura Director (Principal
Financial Officer)
/s/ David E. Wartner Corporate Controller February 22, 2000
- -------------------------- (Principal Accounting
David E. Wartner Officer)
/s/ Glenn R. August Director February 22, 2000
- --------------------------
Glenn R. August
/s/ R. James Comeaux Director February 22, 2000
- --------------------------
R. James Comeaux
/s/ Anthony P. Scotto Director February 22, 2000
- --------------------------
Anthony P. Scotto
/s/ William J. White Director February 22, 2000
- --------------------------
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 Opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois).
23.1 Consent of PricewaterhouseCoopers LLP, independent auditors.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom (Illinois)
(included as part of Exhibit 5).
24 Power of Attorney (included on the signature page hereto).
99.1 Ivex Packaging Corporation 1999 Stock Option Plan for
Non-Employee Directors (incorporated by reference to the
Company's Definitive Schedule 14A filed with the Commission
on May 11, 1999 (File No. 001-13968)).
February 22, 2000
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 100,000 shares
(the "Shares") of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), pursuant to the Company's 1999 Stock Option Plan
for Non-Employee Directors (the "Plan"). This opinion is being furnished
in accordance with the requirements of Item 601(b)(5) of Regulation S-K
under the Act.
In our examination we have assumed the genuineness of all
signatures, the legal capacity of natural persons, 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 copies.
As to any facts material to the opinion which we did not independently
establish or verify, 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 Plan at least that number of authorized but unissued
shares of Common Stock equal to the number of Shares to be issued
pursuant to the Plan.
In rendering the opinions set forth herein, we have examined
and relied on originals or copies of the following:
(a) the Registration Statement;
(b) the Plan;
(c) the Amended and Restated Certificate of Incorporation and the
Amended and Restated By-Laws of the Company, as presently in effect;
(d) a specimen certificate representing the Common Stock; and
(e) copies of certain resolutions of the Board of Directors of
the Company relating to the Plan, the Shares and related matters.
We express no opinion as to the laws of any jurisdiction other
than the General Corporation Law of the State of Delaware.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, 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 Plan, 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. 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 25, 1999 except Note 16
which is as of February 10, 1999 relating to the financial statements,
which appears in the 1998 Annual Report to Shareholders of Ivex Packaging
Corporation, which is incorporated by reference in Ivex Packaging
Corporation's Annual Report on Form 10-K for the year ended December 31,
1998. We also consent to the incorporation by reference of our report
dated January 25, 1999 relating to the financial statement schedules, which
appears in such Annual Report on Form 10-K.
/S/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Chicago, Illinois
February 22, 2000
