As filed with the Securities and Exchange Commission on November 16, 1998
Registration No. 333-66967
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-------------------
PRE-EFFECTIVE AMENDMENT NO. 1
OF
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
JEFFERSON SMURFIT CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
Delaware 2653 43-1531401
<S> <C> <C>
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
Jefferson Smurfit Centre
8182 Maryland Avenue
St. Louis, Missouri 63105
(314) 746-1100
(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
-------------------
Michael E. Tierney
Vice President,
General Counsel & Secretary
Jefferson Smurfit Corporation
Jefferson Smurfit Centre
8182 Maryland Avenue
St. Louis, Missouri 63105
(314) 746-1100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
-------------------
Copies to:
John R. Ettinger Leslie T. Lederer Frederick C. Lowinger
Davis Polk & Wardwell Stone Container Corporation Sidley & Austin
450 Lexington Avenue 150 North Michigan Avenue One First National Plaza
New York, New York 10017 Chicago, Illinois 60601 Chicago, Illinois 60603
(212) 450-4000 (312) 580-4624 (312) 853-7000
-------------------
Approximate Date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
-------------------
</TABLE>
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earliest effective registration statement for the
same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434 under the Securities Act, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed Maximum Amount of
Title of Each Class of Amount to be Aggregate Offering Registration
Securities to be Registered Registered(1) Price (2) Fee(3)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock, par value $.01 per share......... 4,675,000 shares $56,392,188 $15,677
==========================================================================================================
(1) Represents the maximum number of shares of Common Stock, par value $.01
per share, of the Registrant ("JSC Common Stock") estimated to be
issuable upon the conversion of 4,600,000 shares of Series E Cumulative
Convertible Exchangeable Preferred Stock issued by Stone Container
Corporation ("Stone") and the 6 3/4% Convertible Subordinated
Debentures due 2007 issued by Stone if such conversion occurs after the
consummation of the merger of JSC Acquisition Corporation ("Sub"), a
Delaware corporation and a wholly owned subsidiary of Jefferson Smurfit
Corporation ("JSC"), with and into Stone.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) Computed in accordance with Rule 457(c) under the Securities Act to be
$15,677, which is equal to 0.000278 multiplied by the proposed maximum
aggregate offering price of $56,392,188.
</TABLE>
EXPLANATORY NOTE: THIS AMENDMENT NO. 1 IS BEING FILED SOLELY FOR THE
PURPOSE OF AMENDING EXHIBIT 5.1.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that the Registration
Statement shall thereafter become effective in accordance with Section 8(A) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the commission acting pursuant to said Section 8(A)
may determine.
==============================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses payable in connection with the offering
described in this Registration Statement are set forth below. All amounts
shown are estimates, except the SEC registration fee.
SEC registration fee.............................. $15,677
Printing and engraving expenses................... $20,000
Accounting fees and expenses...................... None
Legal fees and expenses........................... $50,000
Miscellaneous..................................... None
TOTAL.......................................... $85,677
Item 15. Indemnification of Directors and Officers.
Exculpation. Section 102(b)(7) of the Delaware Law permits a
corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision may not eliminate or limit
the liability of a director for any breach of the director's duty of loyalty
to the corporation or its stockholders, for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
for the payment of unlawful dividends or unlawful stock repurchases, or for
any transaction from which the director derived an improper personal benefit.
The SSCC Charter incorporates the exculpation provisions
permitted by Section 102(b)(7) described above.
Indemnification. Section 145 of the Delaware Law permits a
corporation to indemnify any of its directors, officers, employees or agents
who was or is a party, or is threatened to be made a party, to any third party
proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, for expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, if such person acted in good faith and in a manner such person
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
reason to believe that such person's conduct was unlawful. In a derivative
action, i.e., one by or in the right of a corporation, the corporation is
permitted to indemnify directors, officers, employees or agents against
expenses (including attorneys' fees) actually and reasonably incurred by them
in connection with the defense or settlement of an action or suit if they
acted in good faith and in a manner that they reasonably believed to be in or
not opposed to the best interests of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable
to the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that such person
is fairly and reasonably entitled to indemnity for such expenses despite such
adjudication of liability.
The SSSC Bylaws make mandatory the indemnification permitted by
Section 145 described above.
Insurance. The directors and officers of JSC are insured under
a policy of directors' and officers' liability insurance.
Stone Directors and Officers. The merger agreement to effect
the Merger (the "Merger Agreement") provides that SSCC will (or will cause
Stone to) indemnify and hold harmless, to the same extent provided for in the
Stone Charter and Stone Bylaws, current or former directors or officers of
Stone for damages and liabilities (including reasonable attorneys' fees)
arising out of or pertaining to any action or inaction in their capacity as an
officer or director occurring before the Effective Time (including
transactions contemplated by the Merger Agreement). The Merger Agreement
further provides that the indemnification obligations set forth in the Stone
Charter and Stone Bylaws as of the date thereof, will survive the Merger and
will not be amended, repealed or otherwise modified for a period of six years
after the Effective Time in a manner that would adversely affect the rights of
individuals who were directors, officers, employees or agents of Stone or its
subsidiaries on or prior to the Effective Time.
The Merger Agreement also provides that for a period of six
years after the Effective Time, SSCC will provide to Stone's current directors
and officers liability insurance protection substantially equivalent in kind
and scope to that provided by Stone's current directors' and officers'
liability insurance policies in effect the date thereof; provided however,
SSCC will not be required to expend in any one year an amount in excess of
300% of the annual premiums currently paid by Stone for such insurance (such
amount, the "Maximum Premium"); provided, further, that if during such period
the annual premiums for comparable insurance coverage exceed the Maximum
Premium, SSCC shall be obligated to provide a policy that, in the reasonable
judgment of SSCC, provides the best coverage available for a cost not
exceeding the Maximum Premium.
Item 16. Exhibits.
5.1* Opinion of Davis Polk & Wardwell
23.1 ** Consent of Ernst & Young LLP
23.2 Consent of Davis Polk & Wardwell (included in the
opinion filed as Exhibit 5.1)
24.1 ** Powers of Attorney
- ------------
* Filed herewith.
** Filed previously.
Item 17. 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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, as amended (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.
(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) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by JSC
(or SSCC after the Merger) pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 (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) The undersigned registrant hereby undertakes 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 Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities 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 of
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
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-3 and has duly caused this
Amendment No. 1 to this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the County of St. Louis, State
of Missouri, on November 16, 1998.
JEFFERSON SMURFIT CORPORATION
(Registrant)
By: /s/ Michael E. Tierney
---------------------------
Michael E. Tierney
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this Amendment No.
1 to this Registration Statement has been signed below on this 16th day of
November, 1998 by the following persons in the capacities indicated.
Signature Title
--------- -----
President, Chief Executive Officer and
* Director (Principal Executive Officer)
- ------------------------------
(Richard W. Graham)
* Vice President and Chief Financial Officer
- ------------------------------ (Principal Financial and Accounting Officer)
(Patrick J. Moore)
* Director
- ------------------------------
(Leigh J. Abramson)
* Director
- ------------------------------
(Alan E. Goldberg)
* Director
- ------------------------------
(Michael C. Hoffman)
* Director
- ------------------------------
(Michael M. Janson)
* Director
- ------------------------------
(Thomas A. Reynolds, III)
* Director
- ------------------------------
(James E. Terrill)
*By: /s/ Michael E. Tierney
------------------------------
Michael E. Tierney
Attorney-in-Fact
EXHIBIT INDEX
5.1 - Opinion of Davis Polk & Wardwell
23.1 ** - Consent of Ernst & Young LLP
23.2 - Consent of Davis Polk & Wardwell (included in the opinion filed as
Exhibit 5.1)
24.1 ** - Powers of Attorney
** Filed previously.
Exihibit 5.1
November 9, 1998
Jefferson Smurfit Corporation
Jefferson Smurfit Centre
8182 Maryland Avenue
St. Louis, Missouri 63105
Ladies and Gentlemen:
We have acted as your counsel in connection with Jefferson
Smurfit Corporation's ("JSC") Registration Statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"), relating
to the registration by JSC of shares (the "Shares") of common stock, par value
$.01 per share, of JSC to be issued in connection with the conversion of Stone
Container Corporation's ("Stone") 6 3/4% Convertible Subordinated Debentures
due 2007 (the "Convertible Debentures") and Stone's $1.75 Series E Cumulative
Convertible Exchangeable Preferred Stock (the "Convertible Preferred Stock").
JSC Acquisition Corporation ("Merger Subsidiary"), a wholly-owned subsidiary
of JSC, will merge with and into Stone pursuant to the terms of the Agreement
and Plan of Merger dated as of May 10, 1998, as amended, among JSC, Stone and
Merger Subsidiary (the "Merger Agreement").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates and other instruments, and have conducted such other
investigations of fact and law, as we have deemed necessary or advisable for
the purposes of this opinion.
In rendering this opinion we have assumed that, prior to the
issuance of any of the Shares, (i) the Registration Statement, as then
amended, will have become effective under the Securities Act, (ii) the
stockholders of JSC will have approved the issuance of shares of JSC in
connection with the Merger and the amendments to the JSC restated certificate
of incorporation as contemplated by the Merger Agreement, (iii) the
stockholders of Stone will have approved and adopted the Merger Agreement and
approved amendments to the Stone restated certificate of incorporation as
contemplated by the Merger Agreement, (iv) the transactions contemplated by
the Merger Agreement will have been consummated and (v) the issuance of the
Convertible Debentures and the Convertible Preferred Stock, as the case may
be, was duly authorized and such securities are validly issued, fully paid and
non-assessable.
On the basis of the foregoing and assuming the due execution
and delivery of certificates representing the Shares, we are of the opinion
that the Shares have been duly authorized and the Shares, when issued and
delivered in accordance with the terms and conditions of the Convertible
Debentures and the Convertible Preferred Stock, as the case may be, will be
validly issued, fully paid and non-assessable.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the federal
laws of the United States of America and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the caption
"Experts" in the prospectus constituting a part of the Registration Statement.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by or furnished to any other person without our prior
written consent.
Very truly yours,
/s/ Davis Polk & Wardwell
