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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________
BWAY 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 SECOND AMENDED AND RESTATED 1995 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
__________
Blair G. Schlossberg, Esq.
General Counsel
BWAY Corporation
8607 Roberts Drive, Suite 250
Atlanta, Georgia 30350
Telephone: (770) 645-4800
(Name, address and telephone number of agent for service)
Copy to:
William S. Kirsch, P.C.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2288
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<CAPTION>
Calculation of Registration Fee
=====================================================================================================
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)
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<S> <C> <C> <C> <C>
Common Stock, par 300,000 shares (3) $15.9375 $4,781,250 $1,330
value $0.01 per
share (2)
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</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 November 23, 1998.
(2) Includes associated preferred share purchase rights.
(3) 300,000 shares of Common Stock are being registered for issuance pursuant to
the BWAY Corporation Second Amended and Restated 1995 Long-Term Incentive
Plan. BWAY Corporation previously registered on its Registration Statement
on Form S-8 (File No. 333-21745) 1,125,000 shares of Common Stock (after
giving effect to a 3-for-2 split of the Common Stock on September 22, 1997)
that have been issued under, or are reserved for issuance pursuant to, the
BWAY Corporation Second Amended and Restated 1995 Long-Term Incentive Plan.
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INCORPORATION BY REFERENCE
This Registration Statement on Form S-8 relating to the BWAY Corporation
Second Amended and Restated 1995 Long-Term Incentive Plan is being filed to
register additional securities of the same class as other securities for which
an earlier-filed Registration Statement on Form S-8 relating to the BWAY
Corporation Amended and Restated 1995 Long-Term Incentive Plan is effective.
Pursuant to Instruction E on Form S-8, the contents of such earlier Registration
Statement on Form S-8 (File No. 333-21745) filed with the Securities and
Exchange Commission are incorporated in and made a part of this Registration
Statement by reference. The total number of shares of Common Stock relating to
the BWAY Corporation Amended and Restated 1995 Long-Term Incentive Plan,
including the 300,000 shares in this shares in this registration statement, is
1,425,000.
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.
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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 November 25, 1998.
BWAY CORPORATION
By: /s/ John M. Casey
---------------------------------------
Name: John M. Casey
Title: Executive 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 John M. Casey 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 November 25,
1998, by the following persons in the capacities indicated.
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<CAPTION>
Signature Capacity
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<S> <C>
/s/ Warren J. Hayford Chairman of the Board and Chief
- ------------------------- Executive Officer
Warren J. Hayford (Principal Executive Officer)
/s/ John T. Stirrup President, Chief Operating Officer and Director
- -------------------------
John T. Stirrup
/s/ James W. Milton Executive Vice President and Director
- -------------------------
James W. Milton
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<TABLE>
<S> <C>
/s/ John M. Casey Executive Vice President and Chief Financial
- ------------------------ Officer
John M. Casey (Principal Financial Officer)
/s/ Kevin C. Kern Vice President and Corporate
- ------------------------ Controller
Kevin C. Kern (Principal Accounting Officer)
/s/ Thomas A. Donahoe Director
- ------------------------
Thomas A. Donahoe
/s/ Alexander P. Dyer Director
- ------------------------
Alexander P. Dyer
/s/ Jean-Pierre M. Ergas Director
- ------------------------
Jean-Pierre M. Ergas
/s/ John E. Jones Director
- ------------------------
John E. Jones
/s/ John W. Puth Director
- ------------------------
John W. Puth
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
Number Description
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<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 Amendment No. 2 to Rights Agreement dated as of August 19, (4)
1997 between the Company and Harris Trust and Savings Bank, as
Rights Agent
4.7 BWAY Corporation Second Amended and Restated 1995 Long- (5)
Term Incentive Plan
4.8 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)
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(1) Incorporated by reference to the Company's Registration Statement on Form
S-1 (File No. 33-91114).
(2) Incorporated by reference to the Company's Form 10-K for the fiscal year
ending October 1, 1995 (File No. 0-26178).
(3) Incorporated by reference to the Company's Form 10-Q for the period ending
March 31, 1996 (File No. 0-26178).
(4) Incorporated by reference to the Company's Form 10-K for the fiscal year
ending September 28, 1997 (File No. 0-26178).
(5) Incorporated by reference to the Company's Form 10-Q for the period ending
March 28, 1998 (File No. 0-26178).
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Exhibit 5.1
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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
November 25, 1998
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, a Delaware
corporation (the "Company"), in connection with the proposed registration by the
Company of up to 300,000 additional shares of the Company's Common Stock, par
value $.01 per share (the "Common Stock"), which are issuable upon exercise of
stock options granted under the BWAY Corporation Second Amended and Restated
1995 Long-Term Incentive Plan (the "Amended Plan"), pursuant to a Registration
Statement on Form S-8 (such Registration Statement, as amended or supplemented,
the "Registration Statement") filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act").
The opinion contained in this letter (herein called "our opinion") is
subject to the qualifications that we express no opinion as to the applicability
of, compliance with, or effect of (i) any bankruptcy, insolvency,
reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other
similar law affecting the enforcement of creditors' rights generally, (ii)
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), (iii) public policy considerations which may
limit the rights of parties to obtain certain remedies and (iv) any laws except
the General Corporation Law of the State of Delaware. We advise you that issues
addressed by this letter may be governed in whole or in part by other laws, but
we express no opinion as to whether any relevant difference exists between the
laws upon which our opinions are based and any other laws which may actually
govern. For purposes of our opinion, we have assumed without independent
investigation that factual information supplied to us for purposes of our
opinion is complete and accurate.
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BWAY Corporation
November 25, 1998
Page 2
Based upon and subject to the foregoing, we hereby advise you that in
our opinion each share of Common Stock registered under the Registration
Statement and issuable under 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 upon issuance be
validly issued, fully paid and non-assessable.
For purposes of this opinion, we have relied without any independent
verification upon certain 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. We have further assumed that
(i) all existing and future grants of awards under the Amended Plan have been
and will be made in accordance with the terms of the Amended Plan, (ii) all
prior and future exercises of awards granted under the Amended Plan have been
made and will be made in accordance with the terms of the Amended Plan, (iii) at
the time of all future grants of awards under the Amended Plan (and exercises
thereof) the Company will be a corporation existing and in good standing under
the laws of its state of incorporation and (iv) at the time of all future grants
of awards under the Amended Plan (and exercises thereof) the Company's
Certificate of Incorporation will continue to authorize the issuance of a number
of shares of Common Stock greater than the sum of (a) the number of unissued
shares reserved for awards under the Amended Plan, (b) all shares outstanding
prior to such time, (c) the maximum number of shares which the Company may be
obligated to issue under all options, warrants or other obligations of any kind
(other than shares which may be issued pursuant to the Amended Plan) and (d) any
shares previously retired or otherwise canceled or obtained which the Company is
not authorized to reissue or sell.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to 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.
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BWAY Corporation
November 25, 1998
Page 3
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.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Sincerely,
/s/ Kirkland & Ellis
Kirkland & Ellis
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Exhibit 23.2
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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 10, 1997, appearing in
the Annual Report on Form 10-K of BWAY Corporation for the year ended September
28, 1997.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
November 23, 1998
