<PAGE>
As filed with the Securities and Exchange Commission on February 13, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------
BWAY CORPORATION
(f/k/a BROCKWAY STANDARD HOLDINGS CORPORATION)
(Exact name of registrant as specified in its charter)
Delaware 36-3624491
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
8607 Roberts Drive, Suite 250
Atlanta, Georgia 30350
Telephone: (770) 587-0888
(Address of principal executive offices)
----------
BWAY CORPORATION AMENDED AND RESTATED 1995 LONG-TERM INCENTIVE PLAN
and
BROCKWAY STANDARD HOLDINGS CORPORATION
FORMULA PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plans)
----------
Blair G. Schlossberg, Esq.
General Counsel
BWAY Corporation
8607 Roberts Drive, Suite 250
Atlanta, Georgia 30350
Telephone: (770) 587-0888
(Name, address and telephone number of agent for service)
Copy to:
Alan G. Berkshire, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Calculation of Registration Fee
================================================================================
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of securities to Amount to be offering price per aggregate offering registration
be registered registered share(1) price(1) fee(1)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 780,000 shares(3) $18.88 $14,726,400 $4,462.55
value $0.01 per
share(2)
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
aggregate offering price and the amount of the registration fee based upon
the high and low prices reported for the shares on the New York Stock
Exchange on February 10, 1997.
(2) Includes associated preferred share purchase rights.
(3) 750,000 share are reserved for issuance pursuant to the BWAY Corporation
Amended and Restated 1995 Long-Term Incentive Plan; 30,000 shares are
reserved for issuance pursuant to the Brockway Standard Holdings
Corporation Formula Plan for Non-Employee Directors
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in Part I (plan information and
registrant information) will be sent or given to each director, officer and key
employee of BWAY Corporation (f/k/a/ Brockway Standard Holdings Corporation)
(the "Company" or the "Registrant") selected to participate in the BWAY
Corporation Amended and Restated 1995 Long-Term Incentive Plan (the "Amended
Plan") as specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"). Such documents need not be filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
In addition, the documents containing information specified in Part I (plan
information and registrant information) will be sent or given to each non-
employee director of the Company who participates in the Brockway Standard
Holdings Corporation Formula Plan for Non-Employee Directors (the "Formula
Plan") as specified by Rule 428(b)(1) under the Securities Act. Such documents
need not be filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated in and made a part of this Registration Statement by reference, as
of their respective dates:
(a) Annual Report on Form 10-K for the fiscal year ended September 29,
1996.
(b) Quarterly Report on Form 10-Q for the quarterly period ended
December 29, 1996 and Current Report on Form 8-K filed November 12, 1996.
(c) The description of the Registrant's common stock and preferred share
purchase rights under the caption "Item 1. Description of Registrant's
Securities to be Registered" contained in each of the Registrant's
Registration Statements on Form 8-A (File No. 0-26178) that were filed with
the Commission on November 5, 1996 pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), including any amendments or
reports filed for the purpose of updating such descriptions.
(d) All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the
date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered hereby 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 the filing of such reports and 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.
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Members of Kirkland & Ellis, counsel for the Company giving an opinion upon
the validity of the shares of Common Stock being registered hereby, beneficially
own shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated under the laws of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware ("Section 145")
provides that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties 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 such corporation), by reason of the
fact that such person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include 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, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was illegal. A
Delaware corporation may indemnify any persons who are, or are threatened to be
made, a party to any threatened, pending or completed action or suit by or in
the right of the corporation by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorney's fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
The Company's certificate of incorporation, as amended, provides for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145.
Article V of the by-laws of the Company provides that the Company shall
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
or officer of such corporation, or is or was serving at the request of such
corporation as a director, officer or member of another corporation, 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 interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Indemnification in
connection with an action or suit by or in the right of such corporation to
procure a judgment in its favor is limited to payment of expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of such an action or suit if he acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation except that no such 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 in which
such action or suit was brought shall determine that, despite the adjudication
of liability but in consideration of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
2
<PAGE>
Article V further provides that the Company may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee, fiduciary, or agent of the Company or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or her in
any such capacity, whether or not the Company would have the power to indemnify
such person against such liability under Article V.
All of the Company's directors and officers are covered by insurance policies
maintained and held in effect by the Company against certain liabilities for
actions taken in such capacities, including liabilities under the Securities Act
of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits to this Registration Statement are listed in the Exhibit Index of
this Registration Statement, which Exhibit Index is incorporated herein by
reference.
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;
(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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the Registration Statement is on Form S-3 or Form S-8
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in this 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 15(d) of the Exchange
Act (and, where applicable, each filing of any 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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3
<PAGE>
(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 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.
4
<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on February 13, 1997.
BWAY CORPORATION
By: /s/ David P. Hayford
----------------------------------
Name: David P. Hayford
Title: Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of David P. Hayford and Blair G. Schlossberg his
true and lawful attorney-in-fact, each with full power of substitution and
revocation, for him and in his name, place and stead, in any and all capacities
(including his capacity as a director and/or officer of BWAY Corporation), to
sign any and all amendments (including post-effective 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 each such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their 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 and Power of Attorney have been signed on February 13, 1997, by the
following persons in the capacities indicated.
Signature Capacity
--------- --------
/s/ Warren J. Hayford Chairman of the Board, Chief
- ------------------------ Executive Officer and Director
Warren J. Hayford
/s/ John T. Stirrup President, Chief Operating Officer and Director
- ------------------------ (Principal Executive Officer)
John T. Stirrup
/s/ James W. Milton Executive Vice President and Director
- ------------------------
James W. Milton
/s/ David P. Hayford Senior Vice President and Chief Financial Officer
- ------------------------ (Principal Financial Officer)
David P. Hayford
/s/ Kevin C. Kern Vice President and Corporate
- ------------------------ Controller (Principal Accounting Officer)
Kevin C. Kern
5
<PAGE>
<TABLE>
<S> <C>
/s/ Thomas A. Donahoe Director
- ----------------------------------------
Thomas A. Donahoe
/s/ Alexander P. Dyer Director
- ----------------------------------------
Alexander P. Dyer
Director
- ----------------------------------------
Jean-Pierre M. Ergas
/s/ John E. Jones Director
- ----------------------------------------
John E. Jones
/s/ John W. Puth Director
- ----------------------------------------
John W. Puth
</TABLE>
6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Sequentially Numbered Page
- ------- ----------- ---------------------------
<C> <S> <C>
4.1 Form of certificate representing shares of Common Stock of the (2)
Company
4.2 Amended and Restated Certificate of Incorporation of the Company (3)
4.3 Amended and Restated By-laws of the Company (1)
4.4 Rights Agreement dated as of June 9, 1995 between the Company (1)
and Harris Trust and Savings Bank, as Rights Agent
4.5 Amendments to Rights Agreement dated as of February 12, 1996 (3)
between the Company and Harris Trust and Savings Bank, as
Rights Agent
4.6 BWAY Corporation Amended and Restated 1995 Long-Term (4)
Incentive Plan
4.7 Brockway Standard Holdings Corporation Formula Plan for Non- (1)
Employee Directors
5.1 Opinion of Kirkland & Ellis
23.1 Consent of Kirkland & Ellis (included in Exhibit 5.1)
23.2 Consent of Deloitte & Touche LLP
24.1 Powers of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
- ------------------
(1) Incorporated by reference to the respective exhibit to the Company's
Registration Statement No. 33-91114.
(2) Incorporated by reference to the respective exhibit to the Company's Form
10-K for the fiscal year ending October 1, 1995.
(3) Incorporated by reference to the respective exhibit to the Company's Form
10-Q for the period ending March 31, 1996.
(4) Incorporated by reference to the respective exhibit to the Company's Form
10-K for the fiscal year ending September 29, 1996.
7
<PAGE>
EXHIBIT 5.1
-----------
KIRKLAND & ELLIS
PARTNERSHIPS INCLUDING PROFESSIONAL CORPORATIONS
200 East Randolph Drive
Chicago, Illinois 60601
312-861-2000
To Call Writer Direct: Facsimile:
312-861-2000 312-861-2200
February 13, 1997
BWAY Corporation
8607 Roberts Drive
Suite 250
Atlanta, GA 30350
Re: BWAY Corporation
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to BWAY Corporation (the "Company")
in connection with the proposed registration by the Company of up to 780,000
shares of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), 30,000 such shares of which are issuable upon exercise of stock options
granted under the Brockway Standard Holding Corporation Formula Plan for Non-
Employee Directors (the "Formula Plan") and 750,000 such shares of which are
issuable upon exercise of stock options granted under the BWAY Corporation
Amended and Restated 1995 Long-Term Incentive Plan (the "Amended Plan"),
pursuant to a Registration Statement on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act") (such Registration Statement, as amended or supplemented, is
hereinafter referred to as the "Registration Statement").
The opinions contained in this letter (herein called "our opinions")
are based exclusively upon the General Corporation Law of the State of Delaware,
as now constituted. We express no opinion as to the applicability of, compliance
with, or effect of any other law or governmental requirement with respect to the
Company. For purposes of our opinions we have assumed without independent
investigation that factual information supplied to us for purposes of our
opinions is complete and accurate.
Based upon and subject to the foregoing, we hereby advise you that in
our opinion:
(1) The Company is a corporation existing and in good standing under
the laws of the State of Delaware.
London Los Angeles New York Washington D.C.
<PAGE>
KIRKLAND & ELLIS
BWAY Corporation
February 13, 1997
Page 2
(2) Each share of Common Stock registered under the Registration
Statement and issuable under the Formula Plan or the Amended Plan when
issued as authorized by the Company upon payment of the consideration to be
paid therefor (in an amount at least equal to the par value of the related
shares), will be validly issued, fully paid and non-assessable:
For purposes of this letter we have relied without any independent
verification upon (i) information contained in one or more certificates provided
by the Delaware Secretary of State and (ii) factual information supplied to us
by the Company. We have assumed without investigation that there has been no
relevant change or development between the dates as of which the information
cited in the preceding sentence was given and the date of this letter and that
the information upon which we have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading. For
purposes of each opinion in paragraph 1, we have relied exclusively upon a
certificate issued by the Delaware Secretary of State, and such opinion is not
intended to provide any conclusion or assurance beyond that conveyed by that
certificate.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
our firm under the heading "Legal Matters" in the Registration Statement. In
giving this consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of each share
of Common Stock registered under the Registration Statement.
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of Delaware be changed by legislative action, judicial
decision or otherwise.
Sincerely,
/s/ KIRKLAND & ELLIS
-----------------------
Kirkland & Ellis
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
BWAY Corporation on Form S-8 of our report dated November 8, 1996, appearing in
the Annual Report on Form 10-K of BWAY Corporation for the year ended September
29, 1996.
/s/ DELOITTE & TOUCHE LLP
- --------------------------
Deloitte & Touche LLP
Atlanta, Georgia
February 12, 1997
