As filed with the Securities and Exchange Commission on December 1, 1998
Registration No. 333-[ ___ ]
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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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Smurfit-Stone Container Corporation
(Exact name of registrant as specified in its charter)
Delaware 2653 43-1531401
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification No.)
organization) Code Number)
Jefferson Smurfit Corporation
8182 Maryland Avenue
St. Louis, Missouri 63105
(Address of principal executive offices)
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SMURFIT-STONE CONTAINER CORPORATION
1998 LONG TERM INCENTIVE PLAN
AND EQUITY ADJUSTMENT PLAN
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Craig A. Hunt
Vice President, General Counsel & Secretary
Jefferson Smurfit Center
8182 Maryland Avenue
St. Louis, Missouri 63105
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (501) 881-6409
Copy to:
John R. Ettinger
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Maximum Aggregate Amount of
Amount to Offering Price Offering Registration
Title of Securities to be Registered be Registered Per Share(1) Price(1) Fee
- ------------------------------------------ ---------------- ----------------- ----------- ------------
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Smurfit-Stone Container Corporation 14,956,173 $13.50 $194,398,369.00 $54,042.75
Common Stock, par value $.01 per share
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1. Of the 14,956,173 shares being registered hereunder, 8,500,000 are
shares available for future grants under the Smurfit-Stone Container
Corporation Long Term Incentive Plan (the "LTIP Shares") and the
remaining 6,456,173 shares are shares issuable under former Stone
Container Corporation ("Stone") options which were converted into
options on the Registrant's shares as a result of the merger of Stone
with a subsidiary of the Registrant (the "Adjusted Option Shares").
The maximum aggregate offering price for the LTIP Shares is
$107,578,125.00, as computed pursuant to Rule 457(c) based on the
average of the bid and asked price of the shares on November 23, 1998
(8,500,000 times $12.66). The maximum aggregate offering price for
the Adjusted Option Shares is $86,820,244.00, which is the aggregate
exercise price of the Stone options which may be exercised for Adjusted
Option Shares, as required under Rule 457(h)(1) (exercise prices range
from $13.29 to $13.50 per share).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities
and Exchange Commission (the "Commission") by Smurfit-Stone Container
Corporation (formerly known as Jefferson Smurfit Corporation) (the
"Registrant") pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act") are incorporated by reference herein:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 and the Registrant's Quarterly Reports on Form
10-Q for each of the fiscal quarters ended March 31, 1998, June 30, 1998 and
September 30, 1998.
(2) All documents subsequently filed with the Commission 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 (i) which indicates that
all securities offered herein have been sold or (ii) which deregisters all
securities then remaining unsold.
(3) The description of the Registrant's common stock $0.01 par
value ("Common Stock" or "Shares") contained in the Registrant's registration
statement on Form 8-A (File No. 0-23876), filed under the 1934 Act, including
any amendment thereto or report filed for the purpose of updating such
description.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes hereof or of the related prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which is also incorporated or deemed to be incorporated 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, see Item 3(3) above.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
Item 6. 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 Amended and Restated Certificate of Incorporation of the
Registrant will incorporate, 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 Amended and Restated By-Laws of the Registrant 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 Agreement and Plan of
Merger, dated May 10, 1998, among Jefferson Smurfit Corporation, JSC
Acquisition Corporation and Stone Container Corporation ("Stone") (the "Merger
Agreement") providing for the acquisition of Stone by the Registrant by way of
a merger of JSC Acquisition Corporation into Stone (the "Merger") provides
that the Registrant will (or will cause an affiliate 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 of the Merger (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, the Registrant 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, the
Registrant 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, the Registrant shall be obligated to provide a policy that,
in the reasonable judgment of the Registrant, provides the best coverage
available for a cost not exceeding the Maximum Premium.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
4.01 Amended and Restated Certificate of Incorporation of the
Registrant. (Incorporated herein by reference to Annex B of
Registrant's Joint Proxy Statement/Prospectus contained in the
Registrant's Form S-4 registration statement filed with the
Commission on October 8, 1998).
4.02 Amended and Restated By-Laws of the Registrant.
(Incorporated herein by reference to Annex C of Registrant's Joint
Proxy Statement/Prospectus contained in the Registrant's Form S-4
registration statement filed with the Commission on October 8, 1998).
5.01 Opinion of Davis Polk & Wardwell.
23.01 Consent of Ernst & Young.
24.01 Power of attorney (included on the signature page of this
registration statement).
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "1933 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in this 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 Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the 1933
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 Registrant hereby undertakes that, for 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 1934 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 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.
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 Chicago, the State of
Illinois, on November 23, 1998.
SMURFIT-STONE CONTAINER CORPORATION
By: /s/ Patrick J. Moore
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Name: Patrick J. Moore
Title: Vice President &
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints Patrick J. Moore and Craig A. Hunt, and each
of them, our true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, to do any and all acts and things and
execute, in the name of the undersigned, any and all instruments which said
attorneys-in-fact and agents may deem necessary or advisable in order to
enable Smurfit-Stone Container Corporation to comply with the Securities Act
of 1933 and any requirements of the Securities and Exchange Commission in
respect thereof, in connection with the filing with the Securities and Exchange
Commission of the registration statement on Form S-8 under the Securities Act
of 1933, including specifically but without limitation, power and authority to
sign the name of the undersigned to such registration statement, and any
amendments to such registration statement (including post-effective
amendments), and to file the same with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission, to sign any and all applications, registration statements, notices
or other documents necessary or advisable to comply with applicable state
securities laws, and to file the same, together with other documents in
connection therewith with the appropriate state securities authorities,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and to perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully and to all intents
and purposes as the undersigned might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, and any of them, or
their 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.
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Signature Title Date
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/s/ Dr. Michael W. J. Smurfit Chairman of the Board of
- -------------------------------- Directors November 23, 1998
Dr. Michael W. J. Smurfit
/s/ Ray M. Curran
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Ray M. Curran Director November 23, 1998
/s/ Dr. Dermot Smurfit
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Dr. Dermot Smurfit Director November 23, 1998
/s/ Richard W. Graham
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Richard W. Graham Director November 23, 1998
/s/ James J. O'Connor
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James J. O'Connor Director November 23, 1998
/s/ Thomas A. Reynolds, III
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Thomas A. Reynolds, III Director November 23, 1998
/s/ Matthew S. Kaplan
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Matthew S. Kaplan Director November 23, 1998
/s/ Dionisio Garza
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Dionisio Garza Director November 23, 1998
/s/ Richard A. Giesen
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Richard A. Giesen Director November 23, 1998
/s/ Jerry K. Pearlman
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Jerry K. Pearlman Director November 23, 1998
/s/ Alan E. Goldberg
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Alan E. Goldberg Director November 23, 1998
/s/ Roger W. Stone President, Chief Executive
- -------------------------------- Officer and Director (Principal
Roger W. Stone Executive Officer) November 23, 1998
/s/ Patrick J. Moore Chief Financial Officer
- -------------------------------- (Principal Financial and
Patrick J. Moore Accounting Officer) November 23, 1998
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INDEX TO EXHIBITS
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Exhibit Sequentially
Number Exhibit Numbered Page
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4.01 Amended and Restated Certificate of Incorporation of *
the Registrant. (Incorporated herein by reference to
Annex B of Registrant's Joint Proxy
Statement/Prospectus contained in the Registrant's
Form S-4 registration statement filed with the
Commission on October 8, 1998).
4.02 Amended and Restated By-Laws of the Company. *
(Incorporated herein by reference to Annex C of
Registrant's Joint Proxy Statement/Prospectus
contained in the Registrant's Form S-4 registration
statement filed with the Commission on October 8,
1998).
5.01 Opinion of Davis Polk & Wardwell.
23.01 Consent of Ernst & Young LLP.
24.01 Power of attorney (included on the signature page of
this registration statement).
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* Incorporated by reference.
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December 1, 1998
Smurfit-Stone Container Corporation
Jefferson Smurfit Center
8182 Maryland Avenue
St. Louis, Missouri 63105
Dear Sirs:
We are acting as counsel for Smurfit-Stone Container Corporation (the
"Company") in connection with its Registration Statement on Form S-8 (the
"Registration Statement") to register under the Securities Act of 1933, as
amended, 14,956,173 shares (the "Shares") of Common Stock ($.01 par value) of
the Company issuable pursuant to the 1998 Long Term Incentive Plan and the
Equity Adjustment Program (collectively, the "Plans") of the Company. In
connection therewith, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments as we have
deemed necessary for the purpose of this opinion.
Upon the basis of the foregoing, we are of the opinion that the Shares
deliverable pursuant to the Plans have been duly authorized and, when and to
the extent issued pursuant to the Plans upon receipt by the Company of
adequate consideration therefor, will be validly issued, fully paid and
nonassessable.
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 consent to the filing of this opinion as Exhibit 5.01 to the
Registration Statement.
Very truly yours,
Exhibit 23.01
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration
Statement (Form S-8 No. 333-XXXXX) pertaining to the Smurfit-Stone Container
Corporation 1998 Long Term Incentive Plan and Equity Adjustment Plan for the
registration of 14,956,173 shares of Smurfit-Stone Container Corporation's
common stock of our report dated January 22, 1998, with respect to the
consolidated financial statements and schedule of Jefferson Smurfit
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
St. Louis, Missouri
November 30, 1998
