<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended April 2, 2000
Commission File Number 0-26178
BWAY Corporation
(Exact name of registrant as specified in its charter)
DELAWARE 36-3624491
(State of incorporation) (IRS Employer Identification No.)
8607 Roberts Drive, Suite 250
Atlanta, Georgia 30350-2230
(Address of principal executive offices)
(770) 645-4800
(Registrant's telephone number)
__________________
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ----
There were 9,291,718 shares of Common Stock ($.01 par value) outstanding as of
April 28, 2000.
<PAGE>
BWAY CORPORATION
For the quarter ended April 2, 2000
QUARTERLY REPORT ON FORM 10-Q
<TABLE>
<CAPTION>
INDEX
PART I--FINANCIAL INFORMATION Page Number
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets at April 2, 2000 and October 3, 1999 3
(Unaudited)
Consolidated Statements of Income for the Three Month and Six Month 4
Periods Ended April 2, 2000 and April 4, 1999 (Unaudited)
Consolidated Statements of Cash Flows for the Six Month Periods Ended 5
April 2, 2000 and April 4, 1999 (Unaudited)
Notes to Consolidated Financial Statements (Unaudited) 7
Item 2. Management's Discussion and Analysis of Financial Condition and Results 10
of Operations
Item 3. Qualitative and Quantitative Disclosures About Market Risk 12
PART II--OTHER INFORMATION
Item 1. Legal Proceedings 13
Item 2. Changes in Securities and Use of Proceeds 13
Item 3. Defaults upon Senior Securities 13
Item 4. Submission of Matters to a Vote of Security Holders 13
Item 5. Other Information 13
Item 6. Exhibits and Reports on Form 8-K 13
</TABLE>
2
<PAGE>
Part I--Financial Information
Item 1. Financial Statements
BWAY CORPORATION
AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
(In thousands, except share data)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
April 2, October 3,
2000 1999
------------- ------------
ASSETS
<S> <C> <C>
Cash and cash equivalents $ 199 $ 696
Accounts receivable, net of allowance of $604 at
April 2, 2000 and $506 at October 3, 1999 50,118 52,868
Inventories 57,527 49,031
Deferred tax asset 4,723 4,612
Assets held for sale 4,574 4,818
Other current assets 9,150 6,401
-------- --------
Total Current Assets 126,291 118,426
PROPERTY, PLANT AND EQUIPMENT - Net 139,835 144,716
OTHER ASSETS:
Intangible assets, net 88,153 90,140
Deferred financing costs, net 3,626 3,727
Other assets 3,544 5,014
-------- --------
Total Other Assets 95,323 98,881
-------- --------
$361,449 $362,023
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 56,411 $ 65,377
Accrued salaries and wages 8,770 9,104
Other current liabilities 22,987 21,046
Accrued rebates 4,824 8,753
-------- --------
Total Current Liabilities 92,992 104,280
LONG-TERM DEBT 157,300 146,500
LONG-TERM LIABILITIES:
Deferred income taxes 19,821 17,667
Other long-term liabilities 11,867 11,523
-------- --------
Total Long-Term Liabilities 31,688 29,190
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value, authorized 5,000,000 shares,
Common stock, $.01 par value; authorized 24,000,000 shares,
Issued 9,851,002 shares (April 2, 2000 and
October 3, 1999) 99 99
Additional paid-in capital 37,202 37,202
Retained earnings 53,530 55,819
-------- --------
90,831 93,120
Less treasury stock, at cost, 598,178 and 541,978 shares
(April 2, 2000 and October 3, 1999) (11,362) (11,067)
-------- --------
Total Stockholders' Equity 79,469 82,053
-------- --------
$361,449 $362,023
======== ========
See notes to consolidated financial statements (unaudited).
</TABLE>
3
<PAGE>
BWAY CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(In thousands, except per share data)
_______________________________________________________________________________
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------------------ ------------------------------
April 2, April 4, April 2, April 4,
2000 1999 2000 1999
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
NET SALES $119,729 $121,536 $226,468 $226,522
COSTS, EXPENSES AND OTHER:
Cost of products sold (excluding
depreciation and amortization) 102,361 102,504 197,763 191,805
Depreciation and amortization 5,275 4,623 10,319 9,224
Selling and administrative expenses 5,157 5,459 9,514 10,328
Restructuring and impairment charge 5,900 5,900
Interest expense, net 4,327 3,505 8,217 7,189
Other, net (34) (264) (215) (182)
-------- -------- -------- --------
Total costs, expenses and other 122,986 115,827 231,498 218,364
-------- -------- -------- --------
INCOME (LOSS) BEFORE INCOME TAXES (3,257) 5,709 (5,030) 8,158
PROVISION (BENEFIT) FOR INCOME TAXES (1,934) 2,425 (2,741) 3,467
-------- -------- -------- --------
NET INCOME (LOSS) $ (1,323) $ 3,284 $ (2,289) $ 4,691
======== ======== ======== ========
EARNINGS PER SHARE:
- -------------------
Basic Earnings (Loss) per Common Share $ (0.14) $ 0.35 $ (0.25) $ 0.50
======== ======== ======== ========
Weighted Average Basic Common Shares Outstanding 9,258 9,320 9,281 9,326
======== ======== ======== ========
Diluted Earnings (Loss) per Common Share $ (0.14) $ 0.35 $ (0.25) $ 0.49
======== ======== ======== ========
Weighted Average Diluted Common Shares
Outstanding 9,280 9,435 9,293 9,503
======== ======== ======== ========
See notes to consolidated financial statements (unaudited).
</TABLE>
4
<PAGE>
BWAY CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(In thousands)
_______________________________________________________________________________
<TABLE>
<CAPTION>
Six Months Ended
-------------------------------
April 2, April 4,
2000 1999
------------- ------------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income (loss) $ (2,289) $ 4,691
Adjustments to reconcile net income (loss) to net cash provided by (used in)
operating activities:
Depreciation 8,333 7,267
Amortization of goodwill and other intangibles 1,986 1,957
Amortization of deferred financing costs 414 367
Provision for doubtful accounts 98 (7)
Restructuring and impairment charge 5,900
Gain on disposition of property, plant and equipment (8) (186)
Changes in assets and liabilities, net of effects of business
acquisitions:
Accounts receivable 2,652 921
Inventories (8,496) (8,216)
Other assets 2,192 3,753
Accounts payable (8,600) 9,832
Accrued liabilities (4,782) (5,150)
Income taxes, net (1,428) 4,018
------------- -------------
Net cash provided by (used in) operating activities (4,028) 19,247
------------- -------------
INVESTING ACTIVITIES:
Acquisitions, net of cash acquired (30,187)
Capital expenditures (6,896) (15,374)
Proceeds from disposition of property, plant and equipment 4,420
Assets held for sale (10,916)
Other (5) (128)
------------- -------------
Net cash used in investing activities (6,901) (52,185)
------------- -------------
FINANCING ACTIVITES:
Net borrowings under bank revolving credit agreement 10,800 42,300
Repayments on long-term debt (240)
Increase (decrease) in unpresented bank drafts 240 (7,691)
Purchases of treasury stock, net (295) (602)
Financing costs incurred (313) (173)
------------- -------------
Net cash provided by financing activities 10,432 33,594
------------- -------------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (497) 656
CASH AND CASH EQUIVALENTS:
Beginning of period 696 2,303
------------- -------------
End of period $ 199 $ 2,959
============= =============
(Continued)
</TABLE>
5
<PAGE>
BWAY CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(In thousands)
_______________________________________________________________________________
<TABLE>
<CAPTION>
Six Months Ended
--------------------------------
April 2, April 4,
2000 1999
------------- -------------
<S> <C> <C>
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid (refunded) during the period for:
Interest $ 7,839 $ 6,979
============= =============
Income taxes $ (1,313) $ 403
============= =============
Details of businesses acquired were as follows:
Fair value of assets acquired $ 51,400
Liabilities assumed (21,213)
-------------
Net cash paid for acquisitions $ 30,187
=============
NONCASH INVESTING AND FINANCING ACTIVITIES:
Amounts owed for capital expenditures $ 292 $ 1,431
============= =============
</TABLE>
See notes to consolidated financial statements (unaudited).
6
<PAGE>
BWAY CORPORATION
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
_______________________________________________________________________________
1. GENERAL
The accompanying consolidated financial statements have been prepared by the
Company without audit. Certain information and footnote disclosures,
including significant accounting policies, normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted. The consolidated financial
statements as of April 2, 2000 and October 3, 1999 and for the three and six
month periods ended April 2, 2000 and April 4, 1999 include all normal
recurring adjustments necessary for a fair presentation of the financial
position and results of operations for these periods. Operating results for
the six months ended April 2, 2000 are not necessarily indicative of the
results that may be expected for the entire year. These statements and the
accompanying notes should be read in conjunction with the Company's Annual
Report on Form 10-K for the year ended October 3, 1999.
The Company operates on a 52/53-week fiscal year ending on the Sunday
closest to September 30 of the applicable year. The first three quarterly
fiscal periods end on the Sunday closest to December 31, March 31 or June 30
of the applicable quarter.
2. INVENTORIES
Inventories are carried at the lower of cost or market, with cost determined
under the last-in, first-out (LIFO) method of inventory valuation and are
summarized as follows:
<TABLE>
<CAPTION>
April 2, October 3,
2000 1999
--------------- ---------------
<S> <C> <C>
Inventories at FIFO Cost:
Raw materials $10,384 $ 7,950
Work-in-process 36,272 30,543
Finished goods 11,130 10,538
------- -------
57,786 49,031
LIFO reserve 287 546
Market reserve (546) (546)
------- -------
Inventories, net $57,527 $49,031
======= =======
</TABLE>
3. STOCKHOLDERS' EQUITY
Earnings per common share are based on the weighted average number of common
shares and common stock equivalents outstanding during each year presented
including vested and unvested shares issued under the Company's current
long-term incentive plan, as amended. Weighted average basic common shares
outstanding were 9.3 million in each of the second fiscal quarters of 2000
and 1999. Weighted average diluted common shares outstanding for the second
quarter of fiscal 2000 and 1999 were 9.3 million and 9.4 million,
respectively.
4. CREDIT AGREEMENT
At April 2, 2000, the Company had a borrowing limit under its Credit
Agreement of $125 million. Although the Company had borrowed $57.3 million
of the $125 million available, the Company was limited to $66.3 million due
to certain restrictions. The Company's Credit Agreement expires June 2002.
7
<PAGE>
5. RESTRUCTURING AND IMPAIRMENT CHARGE AND PURCHASE ACCOUNTING LIABILITIES
In February 2000, the Company recorded a restructuring and impairment charge
related to the closing of two administrative offices, the termination of 89
employees and the write-down of equipment held for disposal. The
restructuring and impairment charge totaled $5.9 million and consisted of
the following: $1.1 million related to administrative office closings, $1.1
million related to severance, $0.7 million related to contracts and other
miscellaneous costs and $3.0 million related to impairments of equipment
held for disposal. Both administrative offices were closed and all 89
employees were terminated prior to April 2, 2000.
In addition to the $5.9 million restructuring and impairment charge in
fiscal 2000, the Company will record $2.5 million in additional depreciation
related to the shortened useful lives of certain computer systems.
Approximately $0.4 million of additional depreciation was included in the
financial results of the current quarter. The additional depreciation
expense increased the net loss per common share by $.02 for the quarter
ended April 2, 2000. Additional depreciation expense of $2.1 million will be
recognized in the remaining quarters of fiscal year 2000.
The purchase accounting liabilities relate to the fiscal 1999 U. S. Can
Acquisition. The liabilities relate to the costs associated with vacating
and selling one idled manufacturing facility, satisfying the lease
obligations on another idled manufacturing facility and ceasing the
operations, vacating and selling one operating manufacturing facility. The
operating facility is expected to cease production and terminate the
remaining 104 employees before the end of fiscal 2000.
The following table sets forth changes in the Company's restructuring
liabilities from October 3, 2000 to April 2, 2000. Except as noted above for
the February 2000 restructuring, the nature of the liabilities has not
changed from those previously reported on the Company's Annual Report on
Form 10-K for the fiscal year ended October 3, 1999.
<TABLE>
<CAPTION>
(in millions) Balance Balance
October 3, New April 2,
1999 Charges Expenditures 2000
--------------- ------------- -------------- -------------
<S> <C> <C> <C> <C>
Purchase accounting liabilities:
Equipment demolition costs $2.4 $ -- $ -- $2.4
Severance costs 1.3 -- (0.5) 0.8
Facility closure costs 2.7 -- (0.7) 2.0
---- ---- ---- ---
Total purchase accounting liabilities 6.4 -- (1.2) 5.2
---- ---- ---- ---
Restructuring liabilities:
Severance costs 0.1 1.1 (0.6) 0.6
Facility closure costs 0.4 1.1 (0.2) 1.3
Other -- 0.7 -- 0.7
---- ---- ---- ---
Total restructuring liabilities 0.5 2.9 (0.8) 2.6
---- ---- ---- ---
Total restructuring and purchase
accounting liabilities included in other
current liabilities $6.9 $2.9 $(2.0) $7.8
==== ==== ===== ====
</TABLE>
8
<PAGE>
6. CONTINGENCIES
Environmental
The Company continues to monitor and evaluate on an ongoing and regular
basis its compliance with applicable environmental laws and regulations.
Liabilities for non-capital expenditures are recorded when environmental
remediation is probable and the costs can be reasonably estimated. The
Company believes that it is in substantial compliance with all material
federal, state and local environmental requirements.
The Company (and, in some cases, predecessors to the Company) has, from
time to time, received requests for information or notices of potential
responsibility pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA") with respect to certain waste
disposal sites utilized by former or current facilities of the Company or
its various predecessors. To the Company's knowledge, all such matters
which have not been resolved are, subject to certain limitations,
indemnified by the sellers of the relevant Company affiliates, and all
such unresolved matters have been accepted for indemnification by such
sellers. Because liability under CERCLA is retroactive, it is possible
that in the future the Company may incur liabilities with respect to other
sites.
Environmental investigations voluntarily conducted by the Company at its
Homerville, Georgia facility in 1993 and 1994 detected certain conditions
of soil and groundwater contamination, that management believes predated
the Company's 1989 acquisition of the facility from Owens-Illinois. Such
pre-1989 contamination is subject to indemnification by Owens-Illinois.
The Company and Owens-Illinois have entered into supplemental agreements
establishing procedures for investigation and remediation of the
contamination. In 1994, the Georgia Department of Natural Resources
("DNR") determined that further investigation must be completed before DNR
decides whether corrective action is needed. On August 25, 1999, DNR
signed a consent order that had been submitted by the Company and Owens-
Illinois. The consent order establishes a schedule for completing such
investigation and remediation by Owens-Illinois. Separately, the Company
entered into a consent order with DNR on April 22, 1999, related to
certain industrial wastewater and cooling water discharges that exceeded
allowable limits. As of April 2, 2000, the project related to the consent
order was substantially complete with expenditures of approximately
$200,000. Management believes that none of these matters will have a
material adverse effect on the results of operations or financial
condition of the Company in light of both the potential indemnification
obligations of others to the Company and the Company's understanding of
the underlying potential liability.
9
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations
Net sales decreased 1.5% in the second quarter of fiscal 2000 to $119.7 million
from $121.5 million in the second quarter of fiscal 1999. Net sales were
unchanged for the first six months of fiscal 2000 and 1999 at $226.5 million in
each period.
Cost of products sold (excluding depreciation and amortization) decreased 0.1%
to $102.4 million in the second quarter of fiscal 2000 from $102.5 million in
the same period of fiscal 1999. Cost of products sold as a percentage of net
sales increased from 84.3% in the second quarter of fiscal 1999 to 85.5% in the
second quarter of fiscal 2000. Cost of products sold (excluding depreciation and
amortization) for the six months ended April 2, 2000 increased 3.1% to $197.8
million from $191.8 million for the six months ended April 4, 1999. Cost of
products sold as a percentage of net sales increased from 84.7% for the six
month period ended April 4, 1999 to 87.3% for the six month period ended April
2, 2000. The increase in cost of products sold as a percentage of net sales is
primarily attributable to weak operating performance at certain of the Company's
plants during the first quarter. The operations showed improvement during the
second quarter as the cost of products sold as a percentage of net sales
decreased to 85.5% compared to 89.4% in the first quarter of fiscal 2000.
Depreciation and amortization expense increased $0.7 million to $5.3 million in
the second quarter of fiscal 2000 from $4.6 million in the second quarter of
fiscal 1999. Depreciation and amortization expense increased $1.1 million to
$10.3 million for the six months ended April 2, 2000 from $9.2 million for the
six months ended April 4, 1999. The quarterly and six-month increases are
primarily due to the Company's capital expenditure program and additional
depreciation associated with the current year restructuring. Approximately $0.4
million of additional depreciation due to the shortened useful lives of certain
computer systems was included in the second fiscal quarter of 2000.
Selling and administrative expense decreased 5.5% to $5.2 million in the second
quarter of fiscal 2000 from $5.5 million in the second quarter of fiscal 1999.
Selling and administrative expense as a percentage of net sales decreased 0.2%
to 4.3% for the second quarter of fiscal 2000 from 4.5% for the same quarter in
fiscal 1999. Selling and administrative expense decreased 7.9% to $9.5 million
for the six months ended April 2, 2000 from $10.3 million for the six months
ended April 4, 1999. Selling and administrative expense as a percentage of net
sales decreased 7.9% to 4.2% for the six-month period in fiscal 2000 from 4.6%
for the same six-month period in fiscal 1999. The decrease in selling and
administrative expense for the quarter ended April 2, 2000 was primarily the
result of the elimination of costs related to the restructuring described above.
During the quarter ended April 2, 2000, the Company recorded a restructuring and
impairment charge of $5.9 million related to the closing of two administrative
offices, the termination of 89 employees and the write-down of material center
equipment held for disposal. Both administrative offices were closed and all 89
employees were terminated before the end of the quarter.
Interest expense increased $0.8 million in the second quarter of fiscal 2000 to
$4.3 million from $3.5 million in the second quarter of fiscal 1999. Interest
expense increased $1.0 million for the six months ended April 2, 2000 to $8.2
million from $7.2 million for the six months ended April 4, 1999. The increase
in interest expense is attributable to higher interest rates.
Income before taxes decreased $9.0 million to a loss of $3.3 million in the
second quarter of fiscal 2000, from income of $5.7 million in the second quarter
of fiscal 1999. Income before taxes decreased $13.2 million to a loss of $5.0
million for the six months ended April 2, 2000 from income of $8.2 million for
the six months ended April 4, 1999. The decreases are due to the factors
discussed above.
Income taxes decreased $4.4 million to a $1.9 million benefit in the second
quarter of fiscal 2000 from a $2.4 million expense in the second quarter of
fiscal 1999. The decreased expense relates primarily to the restructuring and
impairment charge and the additional depreciation during the quarter, offset in
part by an increase in the effective tax rate. The effective tax rate increased
to 54.5% from 45.5% in the first quarter as a result of lower earnings and the
non-deductible items becoming a larger percentage of pre-tax income.
Diluted loss per common share was $0.14 for the second quarter of fiscal 2000
compared to diluted earnings per common share of $0.35 for the same period of
1999. The weighted average diluted common shares outstanding were 9.3 million
and 9.4 million for the respective quarters. Diluted loss per common share was
$0.25 for the six months ended
10
<PAGE>
April 2, 2000 compared to diluted earnings per common share of $0.50 for the six
months ended April 4, 1999. The weighted average diluted common shares
outstanding were 9.3 million and 9.5 million for the respective six-month
periods.
Liquidity and Capital Resources
The Company's cash requirements for operations and capital expenditures during
the quarter ended April 2, 2000 were financed through borrowings under the
Company's Credit Agreement. At April 2, 2000, the Company had a borrowing limit
under its Credit Agreement of $125 million. The Company is in compliance with
all Credit Agreement covenants for the quarter ended April 2, 2000. Interest
rates under the Credit Agreement are either prime (as determined by Bank of
America) plus an applicable rate margin or at LIBOR plus an applicable rate
margin, at the Company's option. Rate margins are reset quarterly based on
financial performance during the preceding four quarters. Based on financial
results for the past four quarters ended April 2, 2000, prime rate margin was
1.5%, and LIBOR rate margin was 2.5%.
As of April 2, 2000, the Company had borrowed $57.3 million of the $125 million
borrowing limit. However, the Credit Agreement covenants limit borrowings to a
maximum leverage ratio based on the Company's earnings before interest, taxes,
depreciation and amortization (EBITDA) and total debt. As of April 2, 2000,
this covenant effectively limited the Company's available borrowings to a total
of $66.3 million.
During the first six months of fiscal 2000, net cash used in operating
activities was $4.0 million compared to $19.2 million provided during the first
six months of fiscal 1999. During the first six months of fiscal 2000, net cash
was primarily provided by net income before depreciation, amortization and the
restructuring and impairment charge, and reductions of accounts receivable and
other assets. Net cash was primarily used to reduce accounts payable and
accrued liabilities and to increase inventories. The increase in inventories
was partially due to typical seasonal fluctuations.
During the first six months of fiscal 2000, net cash used in investing
activities was $6.9 million compared to $52.2 million used in the first six
months of fiscal 1999. The Company used $6.9 million for capital expenditures
in the first six months of fiscal 2000 compared to $15.4 million in first six
months of fiscal 1999. The Company expects capital expenditures to approximate
$15 million in fiscal year 2000. During the first six months of fiscal 1999,
the Company used $30.2 million for the U. S. Can Acquisition, and the Company
received $4.3 million from the sale of its Solon, Ohio plant.
During the first six months of fiscal 2000, net cash provided by financing
activities was $10.4 million compared to $33.6 million provided during the first
six months of fiscal 1999. During the six-month periods, net cash provided by
financing activities included $10.8 million of borrowings under the Company's
Credit Agreement in fiscal 2000 compared to $42.3 million of borrowings under
the Credit Agreement in fiscal 1999. There was a $7.7 million use of cash in
fiscal 1999 related to a decrease in unpresented bank drafts.
At April 2, 2000, the Company was restricted in its ability to pay dividends and
make other restricted payments in an amount greater than approximately $6.4
million. The Company's subsidiaries are restricted in their ability to transfer
funds to the Company, except for funds to be used to effect approved
acquisitions, pay dividends in specified amounts, reimburse the Company for
operating and other expenditures made on behalf of the subsidiaries and repay
permitted intercompany indebtedness.
Management believes that cash provided from operations and borrowings available
under the Credit Agreement will provide it with sufficient liquidity to meet its
operating needs.
Note: This document contains forward-looking statements as encouraged by the
Private Securities Litigation Reform Act of 1995. All statements contained in
this document, other than historical information, are forward-looking
statements. These statements represent management's current judgement on what
the future holds. A variety of factors could cause business conditions and the
Company's actual results to differ materially from those expected by the Company
or expressed in the Company's forward-looking statements. These factors
include, without limitation, timing and costs of plant start-up and closure; the
Company's ability to successfully integrate acquired businesses; labor unrest;
changes in market price or market demand; changes in raw material costs or
availability; loss of business from customers; unanticipated expenses; changes
in financial markets; potential equipment malfunctions; and the other factors
discussed in the Company's filings with the Securities and Exchange Commission.
11
<PAGE>
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The Company's interest rates under its Credit Agreement are variable subject to
market changes and applicable rate margins based on the Company's financial
performance. At April 2, 2000, the Company had borrowings under the Credit
Agreement of $57.3 million that were subject to interest rate risk. Each 1.0%
change in interest rates would impact quarterly pretax earnings by $0.1 million.
12
<PAGE>
PART II--OTHER INFORMATION
Item 1. Legal Proceedings
Not applicable.
Item 2. Changes in Securities and Use of Proceeds
Not applicable.
Item 3. Defaults upon Senior Securities
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
The Company held its annual shareholders meeting on February 25, 2000. See
Exhibit 22 for a report of the voting on matters considered at the meeting.
Item 5. Other Information
Not applicable.
Item 6. Exhibits and Reports on Form 8-K
See Index to Exhibits. There were no reports filed on Form 8-K during the
quarter ended April 2, 2000.
13
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BWAY Corporation
(Registrant)
Date: May 05, 2000 By: /s/ Kevin C. Kern
-----------------
Kevin C. Kern
Vice President and
Corporate Controller
(Principal Accounting Officer)
Form 10-Q: For the quarterly period ended April 2, 2000.
14
<PAGE>
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Exhibit
No. Description of Document
- ----------------- -------------------------------------------------------------------------------
<S> <C>
10.1 Employment agreement between the Company and Paul Mangiafico, dated as of
March 1, 2000
10.2 BWAY Corporation Fourth Amended and Restated 1995 Long-Term Incentive Plan
22 Certificate and Report of Inspector of Elections for the Annual Meeting for
the Stockholders of BWAY Corporation dated February 25, 2000.
27 Financial Data Schedule
</TABLE>
15
<PAGE>
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of March 1, 2000, between BWAY Corporation,
a Delaware corporation (the "Company") and Paul Mangiafico ("Executive"). The
------- ---------
Company and Executive are referred to collectively herein as the "Parties" and
-------
individually as a "Party".
-----
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive
----------
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement for the period beginning on the date hereof (the "Employment
Date") and ending as provided in Section 4 (the "Employment Period").
-----------------
2. Position and Duties. During the Employment Period, Executive
-------------------
shall be Executive Vice President, Manufacturing & Engineering of the Company
and shall render such administrative and other services to the Company and its
Subsidiaries as the Company's board of directors (the "Board") or its Chief
-----
Operating Officer may from time to time direct. Executive shall devote his best
efforts and his full business time and attention (except for permitted vacation
periods and reasonable periods of illness or other incapacity) to the business
and affairs of the Company and its Subsidiaries. Executive shall perform his
duties and responsibilities to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner. Executive's principal place of
employment shall be at the Company's or its Subsidiaries' facility located in
Cincinnati, Ohio. Executive shall report to the Chief Operating Officer of the
Company and attend the Information Committee meetings and other meetings when
requested by the Chief Operating Officer. For purposes of this Agreement,
"Subsidiaries" shall mean any corporation of which the securities having a
- -------------
majority of the voting power in electing directors are, at the time of
determination, owned by the Company, directly or through one or more
Subsidiaries.
3. Base Salary, Bonus and Benefits.
-------------------------------
(a) During the Employment Period, Executive's base salary shall be
$200,000 per annum or such higher rate as the Board designates from time to time
(the "Base Salary"). The Base Salary shall be payable in regular installments
-----------
in accordance with the Company's general payroll practices. Following the end of
the fiscal year during the Employment Period, the Board may award the Executive
a bonus for such year based on Executive's performance, the amount of which will
be determined by the Board in its sole judgment. Executive's "target" under the
Company's Management Incentive Plan ("MIP") shall be thirty-three percent
(33.3%) of Base Salary with a maximum of fifty percent (50%) of Base Salary.
Executive is eligible to receive a special bonus equal to one-hundred percent
(100%) of his Base Salary if the Company's manufacturing performance is
outstanding (as determined solely by the Chairman and approved by the Board)
within the Employment Period.
(b) In addition to the Base Salary and any bonuses payable to
Executive pursuant to Section 3(a), during the Employment Period Executive shall
be entitled to participate in the Company's 1995 Fourth Amended and Restated
Long-Term Incentive Plan (the "Plan") and all of the Company's other employee
benefit programs for which senior executive employees of the Company are
generally eligible, and Executive shall be entitled to (4) weeks of paid
vacation each year. Executive shall be recommended, one time, to be granted
15,000 options to purchase the
-1-
<PAGE>
Company's Common Stock pursuant to the Plan. The option price and vesting period
shall be determined by the Board in accordance with the Plan.
(c) The Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to
the Company's requirements with respect to reporting and documentation of such
expenses. The Company shall furnish Executive with a reasonably priced
apartment in Cincinnati, Ohio mutually agreed upon by both Parties.
4. Term.
----
(a) Unless renewed by the mutual agreement of the Company and
Executive, the Employment Period shall end on the first anniversary of the
Employment Date; provided that (i) the Employment Period shall terminate prior
to such date upon Executive's resignation, death or permanent disability or
incapacity (as determined by the Board in its good faith judgment) and (ii) the
Employment Period may be terminated by the Company at any time prior to such
date for Cause (as defined below) or without Cause.
(b) If the Employment Period is terminated by the Company without
Cause prior to the first anniversary of the Employment Date, subject to the
limitations set forth below, Executive shall be entitled to receive his Base
Salary and health, disability and life insurance benefits until the later of the
first anniversary of the Employment Date or the first anniversary of the date of
such termination, so long as Executive has not breached the provisions of
Sections 5, 6, 7 and 11 hereof. The amounts payable pursuant to this Section
4(b) shall be reduced by the amount of any compensation Executive receives with
respect to any other employment during the period in which the Company is making
such payments to Executive or, in the event the Employment Period is terminated
as a result of Executive's permanent disability or incapacity, by the amount
Executive receives with respect to any disability policy. Upon request from
time to time, Executive shall furnish the Company with a true and complete
certificate or affidavit specifying any such compensation or payments due to or
received by him. Executive has no obligation to seek employment during the
period that he is receiving compensation pursuant to this Section 4(b).
(c) If the Employment Period is terminated by the Company for Cause or
is terminated pursuant to clause 4 (a) (i) above, Executive shall be entitled to
receive his Base Salary through the date of termination.
(d) All of Executive's rights to fringe benefits and bonuses hereunder
(if any) accruing after the termination of the Employment Period shall cease
upon such termination, except for benefits required by law.
(e) Notwithstanding anything in Section 4(c) to the contrary, the
Company shall be deemed to have terminated the Employment Period without Cause
in the event that (i) Executive resigns as a result of a material breach of this
Agreement by the Company which is not cured by the Company within 30 days after
Executive delivers written notice of such breach to the Chief Executive Officer
and General Counsel or (ii) the Company terminates the Employment Period as a
result of the permanent disability or incapacity of Executive pursuant to 4(a)
(i) above.
-2-
<PAGE>
(f) "Cause" shall mean (i) a material breach of this Agreement by
-----
Executive, (ii) the conviction of the Executive by a court of competent
jurisdiction of a felony or a crime involving moral turpitude, (iii) conduct
which, if known to the general public, would likely bring the Company or any of
its Subsidiaries into substantial public disgrace or disrepute, (iv) material
and repeated failure to perform duties as reasonably directed by the Board or
the Chief Executive Officer or (v) gross negligence or willful misconduct with
respect to the Company or any of its Subsidiaries.
5. Confidential Information. Executive acknowledges that the
------------------------
information, observations and data obtained by him while employed by the Company
concerning the business or affairs of the Company or any Subsidiary
("Confidential Information") are the property of the Company or such Subsidiary.
--------------------------
Therefore, Executive agrees that he shall not disclose to any unauthorized
person or use for his own account any Confidential Information without the prior
written consent of the Chief Executive Officer, unless and to the extent that
the aforementioned matters become generally known to and available for use by
the public other than as a result of Executive's acts or omissions to act.
Nothing herein shall prevent Executive from making (i) any disclosure that is
required by applicable law or the order of a court of competent jurisdiction, or
(ii) any disclosure, in good faith, to properly fulfill Executive's duties under
this Agreement. Executive shall deliver to the Company at the termination of
the Employment Period, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product or the business of the Company or any Subsidiary which
he may then possess or have under his control.
6. Inventions and Patents. Executive agrees that all inventions,
----------------------
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information which relates to the Company's
or any of its Subsidiaries' actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by Executive while employed by the Company ("Work Product")
------------
belong to the Company or such Subsidiary. Executive shall promptly disclose
such Work Product to the Chief Operating Officer and perform all actions
reasonably requested by the Chief Operating Officer (whether during or after the
Employment Period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments).
7. Non-Compete, Non-Solicitation.
-----------------------------
(a) Executive acknowledges that in the course of his employment with
the Company he will become familiar with the Company's and it Subsidiaries'
trade secrets and with other Confidential Information concerning the Company and
the Subsidiaries and that his services will be of special, unique and
extraordinary value to the Company and the Subsidiaries. Therefore, Executive
agrees that, during the Employment Period and during the period that Executive
is receiving compensation pursuant to Section 4(b) (but in no event for a period
of less than twelve months after the termination of the Employment Period) (the
"Noncompete Period"), he shall not directly or indirectly own, manage, control,
-----------------
participate in, consult with, render services for, or in any manner engage in
any business competing with the businesses of the Company or its Subsidiaries as
such businesses exist or are in process on the date of the termination of
Executive's employment, within any geographical area in which the Company or its
Subsidiaries engage in such businesses. Nothing herein shall prohibit Executive
from being a passive owner of not more than 2% of the outstanding stock of any
class of a corporation which is publicly traded, so long as Executive has no
active participation in the business of such corporation.
-3-
<PAGE>
(b) During the Noncompete Period, Executive shall not directly or
indirectly (i) induce or attempt to induce any employee of the Company or any
Subsidiary to leave the employ of the Company or such Subsidiary, or in any way
interfere with the relationship between the Company or any Subsidiary and any
employee thereof, (ii) hire any person who was an employee of the Company or any
Subsidiary at any time during the Employment Period, or (iii) induce or attempt
to induce any customer, supplier, licensee or other business relation of the
Company or any Subsidiary to cease doing business with the Company or such
Subsidiary, or in any way interfere with the relationship between any such
customer, supplier, licensee or business relation and the Company or any
Subsidiary.
8. Enforcement. If, at the time of enforcement of Section 5, 6 or 7,
-----------
a court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the Parties agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area. Because Executive's services are unique and
because Executive has access to Confidential Information and Work Product, the
Parties agree that money damages would be an inadequate remedy for any breach of
this Agreement. Therefore, in the event of a breach or threatened breach of
this Agreement, the Company or its successors or assigns may, in addition to
other rights and remedies existing in their favor, apply to any court of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violations of, the provisions hereof
(without posting a bond or other security).
9. Executive Representations. Executive hereby represents and
-------------------------
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms.
10. Indemnification of Executive. The Company shall indemnify and
----------------------------
hold harmless Executive from all losses and claims incurred in connection with
any actions taken by Executive in his capacity as an officer of the Company in
accordance with, and to the fullest extent permitted under, Delaware General
Corporation Law as in effect from time to time.
11. General Provisions.
------------------
(a) Notices. All notices, requests, demands, claims, and other
-------
communications hereunder shall be in writing. Any notice, request, demand,
claim or other communication hereunder shall be deemed duly given when delivered
personally to the recipient, telecopied to the intended recipient at the
telecopy number set forth therefor below, or sent to the recipient by reputable
express courier service (charges prepaid) and addressed to the intended
recipient as set forth below:
If to the Company:
- -----------------
BWAY Corporation
8607 Roberts Drive, Suite 250
Atlanta, Georgia 30350
Telephone: 770/645-4800
Attention: General Counsel
-4-
<PAGE>
If to Executive:
- ---------------
Paul Mangiafico
15 Kent Road
Newtown, CT 06470
Telephone: 203/426-3490
Any Party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address set forth above using any
other means, but no such notice, request, demand, claim or other communication
shall be deemed to have been duly given unless and until it actually is received
by the intended recipient. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Party notice in the manner herein set forth.
(b) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Entire Agreement. This Agreement (including the documents
----------------
referred to herein) constitutes the entire agreement between the Parties and
supersedes any prior understandings, agreements or representations by or between
the Parties, written or oral, that may have related in any way to the subject
matter hereof.
(d) Counterparts. This Agreement may be executed in separate
------------
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(e) Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors, heirs, executors,
administrators and assigns; provided that the rights and obligations of
Executive under this Agreement shall not be assignable without the prior written
consent of the Company.
(f) Choice of Law. All questions concerning the construction,
-------------
validity and interpretation of this Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Georgia without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Georgia or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Georgia.
(g) Amendment and Waiver. The provisions of this Agreement may be
--------------------
amended and waived only with the prior written consent of the Company and
Executive.
-5-
<PAGE>
(h) Survival. Sections 5, 6, 7 and 8 shall survive and continue in
--------
full force in accordance with their terms notwithstanding any termination of the
Employment Period.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
BWAY CORPORATION
By /s/ Blair Schlossberg
--------------------------------
Its VP Administration
-------------------------------
/s/ Paul Mangiafico 2/22/00
----------------------------------
Paul Mangiafico
-6-
<PAGE>
BWAY CORPORATION
FOURTH AMENDED AND RESTATED
1995 LONG-TERM INCENTIVE PLAN
-----------------------------
Recitals
--------
This fourth amendment amends and restates the Amended and Restated 1995
Long-Term Incentive Plan established in June 1995 and amended in August 1996,
November 1997, November 1998 and December 1999 to increase the aggregate number
of shares of common stock that may be issued under this Plan to 2,425,000
shares.
1. Purpose.
-------
This plan shall be known as the BWAY Corporation Fourth Amended and
Restated 1995 Long-Term Incentive Plan (the "Plan"). The purpose of the Plan
shall be to promote the long-term growth and profitability of BWAY Corporation
(the "Company") and its subsidiaries by (i) providing certain directors,
officers, employees and consultants of the Company and its subsidiaries with
incentives to maximize stockholder value and otherwise contribute to the success
of the Company and (ii) enabling the Company to attract, retain and reward the
best available persons for positions of substantial responsibility. Grants of
incentive or nonqualified stock options, stock appreciation rights ("SARs") in
tandem with options, restricted stock, performance awards, or any combination of
the foregoing may be made under the Plan.
2. Definitions.
-----------
(a) "Board of Directors" and "Board" mean the board of directors of
------------------ -----
BWAY Corporation.
(b) "Cause" means the occurrence of one of the following events:
-----
(i) Conviction of a felony or any crime or offense lesser than a
felony involving the property of the Company or a subsidiary; or
(ii) Conduct that has caused demonstrable and serious injury to
the Company or a subsidiary, monetary or otherwise; or
(iii) Willful refusal to perform or substantial disregard of
duties properly assigned, as determined by the Company.
(c) "Change in Control" means the occurrence of one of the following
-----------------
events:
(i) if any "person" or "group" as those terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), other than an
<PAGE>
Exempt Person, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities; or
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board and any new director whose
election by the Board or nomination for election by the Company's stockholders
was approved by at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose election was
previously so approved, cease for any reason to constitute a majority thereof;
or
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in all or a portion of the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets,
other than a sale to an Exempt Person.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Committee" means the compensation committee of the Board. The
---------
membership of the Committee shall be constituted so as to comply at all times
with the applicable requirements of Rule 16b-3 under the Exchange Act and
Section 162(m) of the Code.
(f) "Competition" is deemed to occur if a person whose employment with
-----------
the Company or its subsidiaries has terminated obtains a position as a full time
or part-time employee of, as a member of the board of directors of, or as a
consultant or advisor with or to, or acquires an ownership interest in excess of
5% of, a corporation, partnership, firm or other entity that engages in any of
the businesses of the Company or any subsidiary with which the person was
involved in a management role at any time during his or her last five years of
employment with the Company or any subsidiary.
(g) "Disability" means a permanent and total disability as defined in the
----------
Company's Long-Term Disability Plan or as otherwise approved by the Committee.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
(i) "Exempt Person" means (i) the Chairman of the Company on the
-------------
effective date of this Plan, (ii) any person who owns 15% or more of the
outstanding shares of Common Stock on the effective date of this Plan, (iii) any
person (or group of related persons) that becomes the owner of 15% or more of
the outstanding shares of Common Stock as a result of a gift or bequest from a
person included in (i) or (ii) above, (iv) any person, entity or group under
2
<PAGE>
the control of any party included in clause (i), (ii) or (iii), and (v) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company.
(j) "Fair Market Value" of a share of Common Stock of the Company means,
-----------------
with respect to the date in question, the officially quoted closing selling
price of the stock on the New York Stock Exchange (the "Market") or if the
Common Stock is not listed or quoted in the Market, the Fair Market Value shall
be the fair value of the Common Stock determined in good faith by the Board;
provided, however, that when shares received upon exercise of an option are
immediately sold in the open market, the net sale price received may be used to
determine the Fair Market Value of any shares used to pay the exercise price or
withholding taxes and to compute the withholding taxes.
(k) "Incentive Stock Option" means an option conforming to the
----------------------
requirements of Section 422 of the Code.
(l) "Non-Employee Director" has the meaning given to such term in Rule
---------------------
16b-3 under the Exchange Act.
(m) "Nonqualified Stock Option" means any stock option other than an
-------------------------
Incentive Stock Option.
(n) "Retirement" means retirement as defined under the Company's Pension
----------
Plan or termination of one's employment on retirement with the approval of the
Committee.
(o) "Subsidiary" means a corporation or other entity of which outstanding
----------
shares or ownership interest representing 50% or more of the combined voting
power of such corporation or other entity are owned directly or indirectly by
the Company.
3. Administration.
--------------
The Plan shall be administered by the Committee. The Committee shall
consist of at least two Non-Employee Directors. Subject to the provisions of
the Plan, the Committee shall be authorized to (i) select persons to participate
in the Plan, (ii) determine the form and substance of grants made under the Plan
to each participant, and the conditions and restrictions, if any, subject to
which such grants will be made, (iii) interpret the Plan and (iv) adopt, amend,
or rescind such rules and regulations for carrying out the Plan as it may deem
appropriate. Decisions of the Committee on all matters relating to the Plan
shall be in the Committee's sole discretion and shall be conclusive and binding
on all parties. The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in accordance
with applicable federal and state laws and rules and regulations promulgated
pursuant thereto.
3
<PAGE>
4. Shares Available for the Plan.
-----------------------------
Subject to adjustments as provided in Section 15, an aggregate of
2,425,000 shares of Common Stock, par value $.01 per share, of the Company
(hereinafter the "Shares") may be issued pursuant to the Plan. Such Shares may
be in whole or in part authorized and unissued, or shares which have been
reacquired by the Company and held as treasury shares. If any grant under the
Plan expires or terminates unexercised, becomes unexercisable or is forfeited as
to any Shares, such unpurchased or forfeited Shares shall thereafter be
available for further grants under the Plan unless, in the case of options
granted under the Plan, related SARs are exercised.
Without limiting the generality of the foregoing provisions of this
Section 4 or the generality of the provisions of Sections 3, 6 or 17 or any
other section of this Plan, the Committee may, at any time or from time to time,
and on such terms and conditions (that are consistent with and not in
contravention of the other provisions of this Plan) as the Committee may, in its
sole discretion, determine, enter into agreements (or take other actions with
respect to the options) for new options containing terms (including exercise
prices) more (or less) favorable than the outstanding options.
5. Participation.
-------------
Participation in the Plan shall be limited to those directors (including
Non-Employee Directors) and officers, employees and consultants of the Company
and its Subsidiaries selected by the Committee. Nothing in the Plan or in any
grant thereunder shall confer any right on an employee to continue in the employ
of the Company or shall interfere in any way with the right of the Company to
terminate an employee at any time.
Incentive Stock Options or Nonqualified Stock Options, SARs in tandem
with options, restricted stock awards, performance awards, or any combination
thereof, may be granted to such persons and for such number of Shares as the
Committee shall determine (such individuals to whom grants are made being
sometimes herein called "optionees" or "grantees" as the case may be). A grant
of any type made hereunder in any one year to an eligible employee shall neither
guarantee nor preclude a further grant of that or any other type to such
employee in that year or subsequent years.
6. Incentive and Nonqualified Options.
----------------------------------
The Committee may from time to time grant to eligible participants
Incentive Stock Options, Nonqualified Stock Options, or any combination thereof.
In any one calendar year, the Committee shall not grant to any one participant,
options to purchase a number of shares of Common Stock in excess of 375,000.
The options granted shall take such form as the Committee shall determine,
subject to the following terms and conditions.
(a) Price. The price per Share deliverable upon the exercise of each
-----
option ("exercise price") shall be established by the Committee, except that in
the case of the grant of any Incentive Stock Option, the exercise price may not
be less than 100% of the Fair Market
4
<PAGE>
Value of the Shares at the close of the market on the day next preceding grant
of the option unless otherwise permitted by Section 422 of the Code. In the case
of the grant of any Incentive Stock Option to an employee who, at the time of
the grant, owns more than 10% of the total combined voting power of all classes
of stock of the Company or any of its Subsidiaries, such price per Share, if
required by the Code, shall not be less that 110% of the Fair Market Value of
the Shares at the close of the market on the day next preceding grant of the
option.
(b) Payment. Options may be exercised in whole or in part, upon payment
-------
of the exercise price of the Shares to be acquired. Payment shall be made in
cash (including check, bank draft or money order) or, in the discretion of the
Committee, (i) in cash and/or shares of Common Stock and/or by delivery of the
optionee's promissory note (if in accordance with policies approved by the
Committee), or (ii) by special arrangement through a broker selected by the
Committee. The fair market value of shares of Common Stock tendered on
exercise of options shall be the Fair Market Value of such shares as of the
close of the market on the day next preceding exercise of the option.
(c) Withholding Tax. Unless otherwise determined by the Committee, a
---------------
participant may elect to deliver shares of Common Stock (or have the company
withhold shares acquired upon exercise of the option) to satisfy in whole or in
part, the amount the Company is required to withhold for taxes in connection
with the exercise of an option. Such election must be made on or before the
date the amount of tax to be withheld is determined. Once made, the election
shall be irrevocable. The fair market value of the shares to be withheld or
delivered will be the Fair Market Value as of the close of the market on the day
next preceding the date the amount of tax to be withheld is determined.
(d) Terms of Options. The term during which each option may be exercised
----------------
shall be determined by the Committee, but, except as otherwise provided herein,
in no event shall an option be exercisable in whole or in part in the case of a
Nonqualified Stock Option, more than ten years and one day from the date it is
granted or, in the case of an Incentive Stock Option, more than ten years from
the date it is granted; and, in the case of the grant of an Incentive Stock
Option to an employee who at the time of the grant owns more than 10% of the
total combined voting power of all classes of stock of the Company or any of its
Subsidiaries, in no event shall such option be exercisable, if required by the
Code, more than five years from the date of the grant. All rights to purchase
shares pursuant to an option shall, unless sooner terminated, expire at the date
designated by the Committee. The Committee shall determine the date on which
each option shall become exercisable and may provide that an option shall become
exercisable in installments. The shares constituting each installment may be
purchased in whole or in part at any time after such installment becomes
exercisable, subject to such minimum exercise requirements as are designated by
the Committee. Unless otherwise provided herein or in the terms of the related
grant, an optionee may exercise an option only if he or she is, and has been
continuously since the date the option was granted, a director, officer or
employee of the Company or a Subsidiary. Prior to the exercise of the option
and delivery of the Shares represented thereby, the optionee shall have no right
to any dividends or be entitled to any voting rights on any Shares covered by
outstanding options.
5
<PAGE>
(e) Limitations on Grants. If required by the Code, the aggregate Fair
---------------------
Market Value (determined as of the grant date) of Shares for which an Incentive
Stock Option is exercisable for the first time during any calendar year may not
exceed $100,000.
(f) Termination of Employment; Change in Control.
--------------------------------------------
(i) If a participant ceases to be a director, officer or employee
of the Company or any Subsidiary due to death or Disability, all of the
participant's options, and SARs shall become fully vested and exercisable and
shall remain so for a period of one year from the date of termination of
employment, but in no event after the expiration date of the option.
Notwithstanding the foregoing, if the Disability giving rise to the termination
of employment is not within the meaning of Section 422(e)(3) of the Code,
Incentive Stock Options not exercised by such participant within 90 days after
the date of termination of employment will cease to qualify as Incentive Stock
Options and will be treated as Nonqualified Stock Options under the Plan if
required to be so treated under the Code.
(ii) If a participant ceases to be a director, officer or employee
of the Company or a Subsidiary upon the occurrence of his or her Retirement, (A)
each of his or her options and SARs that was exercisable on the date of
Retirement shall remain exercisable for, and shall otherwise terminate at the
end of, a period of up to five years after the date of Retirement, but in no
event after the expiration date of the option; provided that the participant
does not engage in Competition during such five-year period unless he or she
receives written consent to do so from the Board or the Committee, and (B) all
of the participant's options and SARs that were not exercisable on the date of
Retirement shall be forfeited immediately upon such cessation. Notwithstanding
the foregoing, Incentive Stock Options not exercised by such participant within
90 days after Retirement will cease to qualify as Incentive Stock Options and
will be treated as Nonqualified Stock Options under the Plan if required to be
so treated under the Code.
(iii) If a participant ceases to be a director, officer or employee
of the Company or a Subsidiary due to Cause, all of his or her options and SARs
shall be forfeited immediately upon such cessation.
(iv) Unless otherwise determined by the Committee, if a participant
ceases to be an employee of the Company or a Subsidiary for any reason other
than death, Disability, Retirement or Cause, (A) each of his or her options and
SARs that was exercisable on the date of termination shall remain exercisable
for, and shall otherwise terminate at the end of, a period of 90 days after the
date of termination of employment, but in no event after the expiration date of
the option; provided that participant does not engage in Competition during such
90-day period unless he or she receives written consent to do so from the Board
or the Committee, and (B) all of the participant's options and SARs that were
not exercisable on the date of such termination shall be forfeited.
(v) If there is a Change in Control of the Company, all of the
participant's options and SARs shall become fully vested and exercisable.
6
<PAGE>
7. Stock Appreciation Rights.
-------------------------
The Committee shall have the authority to grant SARs under this Plan to
any optionee, either at the time of grant of an option or thereafter by
amendment to an option. The exercise of an option shall result in an immediate
forfeiture of its related SAR to the extent the option is exercised, and the
exercise of a SAR shall cause an immediate forfeiture of its related option to
the extent the SAR is exercised. SARs shall be subject to such other terms and
conditions as the Committee may specify. A SAR shall expire at the same time as
the related option expires and shall be transferable only when, and under the
same conditions as, the related option is transferable.
SARs shall be exercisable only when, to the extent and on the conditions
that the related option is exercisable. No SAR may be exercised unless the Fair
Market Value of a share of Common Stock of the Company on the date of exercise
exceeds the exercise price of the option to which the SAR corresponds.
Upon the exercise of a SAR, the optionee shall be entitled to a
distribution in an amount equal to the difference between the Fair Market Value
of a share of Common Stock of the Company on the date of exercise and the
exercise price of the option to which the SAR is related multiplied by the
number of Shares as to which the SAR is exercised. The Committee shall decide
whether such distribution shall be in cash, in shares, or in a combination
thereof.
All SARs will be exercised automatically on the last day prior to the
expiration date of the related option, so long as the Fair Market Value of a
share of the Company's Common Stock on that date exceeds the exercise price of
the related option.
8. Restricted Stock.
----------------
The Committee may at any time and from time to time grant Shares of
restricted stock under the Plan to such participants and in such amounts as it
determines. Each grant of restricted stock shall specify the applicable
restrictions on such Shares, the duration of such restrictions (which shall be
at least one year), and the time or times at which such restrictions shall lapse
with respect to all or a specified number of Shares that are part of the grant.
The participant will be required to deposit Shares with the Company
during any period of restriction thereon and to execute a blank stock power
therefor. Except as otherwise provided by the Committee, during such period of
restriction the participant shall have all of the rights of a holder of Common
Stock, including but not limited to the rights to receive dividends (or amounts
equivalent to dividends) and to vote.
Except as otherwise provided by the Committee, on a Change in Control or
on termination of a grantee's employment due to death, Disability or Retirement
with the consent of the Company during any period of restriction, all
restrictions on Shares granted to such grantee shall lapse. On termination of a
grantee's employment for any other reason, all restricted stock
7
<PAGE>
granted to such grantee on which the restrictions have not lapsed shall be
forfeited to the Company.
9. Performance Awards.
------------------
Performance awards may be granted on a contingent basis to participants
at any time and from time to time as determined by the Committee. The Committee
shall have complete discretion in determining the size and composition of
performance awards so granted to a participant and the appropriate period over
which performance is to be measured ("performance cycle"). Performance awards
may include (i) specific dollar-value target awards (ii) performance units, the
value of each such unit being determined by the Committee at the time of
issuance, and/or (iii) performance Shares, the value of each such Share being
equal to the Fair Market Value of a share of the Company's Common Stock.
The value of each performance award may be fixed or it may be permitted
to fluctuate based on a performance factor (e.g., return on equity) selected by
the Committee.
The Committee shall establish performance goals and objectives for each
performance cycle on the basis of such criteria and objectives as the Committee
may select from time to time. During any performance cycle, the Committee shall
have the authority to adjust the performance goals and objectives for such cycle
for such reasons as it deems equitable.
The Committee shall determine the portion of each performance award that
is earned by a participant on the basis of the Company's performance over the
performance cycle in relation to the performance goals for such cycle. The
earned portion of a performance award may be paid out in Shares, cash, or a
combination of both, as the Committee may determine.
A participant must be an employee of the Company at the end of the
performance cycle in order to be entitled to payment of a performance award
issued in respect of such cycle; provided, however, that, except as otherwise
determined by the Committee, if a participant ceases to be an employee of the
Company upon the occurrence of his or her death, Retirement, or Disability prior
to the end of the performance cycle, the participant shall earn a proportionate
portion of the performance award based upon the elapsed portion of the
performance cycle and the Company's performance over that portion of such cycle.
In the event of a Change in Control, a participant shall earn no less
than the portion of the performance award that the participant would have earned
if the performance cycle(s) had terminated as of the date of the Change in
Control.
8
<PAGE>
10. Withholding Taxes.
-----------------
The Company may require, as a condition to any grant or exercise under
the Plan or to the delivery of certificates for Shares issued hereunder, that
the grantee pay to the Company, in cash, any federal, state or local taxes of
any kind required by law to be withheld with respect to any grant or any
delivery of Shares. The Company, to the extent permitted or required by law,
shall have the right to deduct from any payment of any kind (including salary or
bonus) otherwise due to a grantee any federal, state or local taxes of any kind
required by law to be withheld with respect to any grant or to the delivery of
Shares under the Plan, or to retain or sell without notice a sufficient number
of the Shares to be issued to such grantee to cover any such taxes, provided
that the Company shall not sell any such Shares if such sale would be considered
a sale by such grantee for purposes of Section 16 of the Exchange Act that is
not exempt from matching thereunder.
11. Written Agreement; Vesting.
--------------------------
Each employee to whom a grant is made under the Plan shall enter into a
written agreement with the Company that shall contain such provisions, including
without limitation vesting requirements, consistent with the provisions of the
Plan, as may be approved by the Committee. Unless the Committee determines
otherwise, no grant under this Plan may be exercised within six months of the
date such grant is made.
12. Transferability.
---------------
Except as set forth in the next sentence of this Section 12, and unless
the agreement pursuant to which a grant is made provides otherwise, an option,
tandem SAR, performance award, or restricted stock granted under the Plan shall
not be transferable by an employee other than by operation of a death
beneficiary designation made by the employee in accordance with rules
established by the Committee, by will or the applicable laws of descent and
distribution, and shall be exercisable during the employee's lifetime only by
him or her or his or her guardian or legal representative if the employee is
legally incompetent. Notwithstanding the foregoing, except to the extent that it
would cause the Plan to fail to meet the conditions required to be met under
Rule 16b-3 under the Exchange Act, the Committee shall have the power and
authority to provide, as a term of any Nonqualified Stock Option granted under
the Plan, that such Nonqualified Stock Option may be transferred without
consideration by the Non-Employee Director or the optionee, as applicable, to a
member or members of his or her immediate family (i.e., a child, children,
grandchild, grandchildren or spouse) and/or to a trust or trusts for the benefit
of an immediate family member or family members.
9
<PAGE>
13. Listing and Registration.
------------------------
If the Committee determines that the listing, registration or
qualification upon any securities exchange or under any law of Shares subject to
any option, SAR, performance award, or restricted stock grant is necessary or
desirable as a condition of, or in connection with, the granting of same or the
issue or purchase of Shares thereunder, no such option or SAR may be exercised
in whole or in part, no such performance award paid out and no Shares issued
unless such listing, registration or qualification is effected free of any
conditions not acceptable to the Committee.
14. Transfer of Employee.
--------------------
Transfer of an employee from the Company to a Subsidiary, from a
Subsidiary to the Company, and from one Subsidiary to another shall not be
considered a termination of employment; nor shall it be considered a termination
of employment if an employee is placed on military or sick leave or such other
leave of absence which is considered by the Committee as continuing intact the
employment relationship.
15. Adjustments.
-----------
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of shares, merger, consolidation, distribution of assets,
or any other change in the corporate structure or shares of the Company, the
Committee shall make such adjustment as it deems appropriate in the number and
kind of Shares or other property reserved for issuance under the Plan, in the
number and kind of Shares or other property covered by grants made under the
Plan, and in the exercise price of outstanding options. In the event of any
merger, consolidation or other reorganization in which the Company is not the
surviving or continuing corporation or in which a Change in Control is to occur,
all of the Company's obligations regarding options, SARs performance awards, and
restricted stock that were granted hereunder and that are outstanding on the
date of such event shall, on such terms as may be approved by the Committee
prior to such event, be assumed by the surviving or continuing corporation or
canceled in exchange for property (including cash).
16. Termination and Modification of the Plan.
----------------------------------------
The Board of Directors, without further approval of the stockholders, may
modify or terminate the Plan, except that no modification shall become effective
without prior approval of the stockholders of the Company if stockholder
approval would be required for continued compliance with the performance-based
compensation exception of Section 162(m) of the Code.
10
<PAGE>
17. Amendment or Substitution of Awards under the Plan.
--------------------------------------------------
The terms of any outstanding award under the Plan may be amended from
time to time by the Committee in its discretion in any manner that it deems
appropriate (including, but not limited to, acceleration of the date of exercise
of any award and/or payments thereunder); provided that no such amendment shall
adversely affect in a material manner any right of a participant under the award
without his written consent, unless the Committee determines in its discretion
that there have occurred or are about to occur significant changes in the
participant's position, duties or responsibilities, or significant changes in
economic, legislative, regulatory, tax, accounting or cost/benefit conditions
which are determined by the Committee in its discretion to have or to be
expected to have a substantial effect on the performance of the Company, or any
subsidiary, affiliate, division or department thereof, on the Plan or on any
award under the Plan. However, the Committee may not reduce the exercise price
of an outstanding option. The Committee may, in its discretion, permit holders
of awards under the Plan to surrender outstanding awards in order to exercise or
realize rights under other awards, or in exchange for the grant of new awards,
or require holders of awards to surrender outstanding awards as a condition
precedent to the grant of new awards under the Plan.
The Committee may amend or modify the grant of any outstanding option,
tandem SAR, performance award, or restricted stock in any manner to the extent
that the Committee would have had the authority to make such grant as so
modified or amended, including without limitation to change the date or dates as
of which (i) an option or SAR becomes exercisable, (ii) a performance award is
to be determined or paid, or (iii) restrictions on Shares are to be removed. No
modification may be made that would materially adversely affect any grant
previously made under the Plan without the approval of the grantee. The
Committee shall be authorized to make minor or administrative modifications to
the Plan as well as modifications to the Plan that may be dictated by
requirements of federal or state laws applicable to the Company or that may be
authorized or made desirable by such laws.
18. Commencement Date; Termination Date.
-----------------------------------
The Board and the stockholders initially approved the Plan as of June,
1995. In August 1996, the Board approved an amendment and restatement of the
Plan, which the stockholders approved in February 1997. In November 1997, the
Board approved a second amendment and restatement of the Plan, which the
stockholders approved in February 1998. In November 1998, the Board approved a
third amendment and restatement of the Plan, which the stockholders approved in
February 1999. In December 1999, the Board approved the fourth amendment and
restatement of the Plan. Unless previously terminated upon the adoption of a
resolution of the Board terminating the Plan, the Plan shall terminate at the
close of business on May 31, 2005. No termination of the Plan shall materially
and adversely affect any of the rights or obligations of any person, without his
consent, under any grant of options or other incentives theretofore granted
under the Plan.
11
<PAGE>
BWAY CORPORATION
2000 ANNUAL MEETING OF STOCKHOLDERS
CERTIFICATE AND REPORT OF INSPECTOR OF ELECTION
-----------------------------------------------
The undersigned, the duly appointed Inspector of Election at the Annual
Meeting of Stockholders (the "Annual Meeting") of BWAY Corporation, a Delaware
corporation (the "Company"), held on February 25, 2000, pursuant to Section 231
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY
that the following is an accurate report of the votes of the stockholders of the
Company at the Annual Meeting:
(1) The number of shares of Common Stock of the Company issued and
outstanding and entitled to vote on matters submitted at the Annual Meeting to
the holders of Common Stock was 9,309,024.
(2) There were present at the Annual Meeting, in person or by proxy,
holders of 8,765,013 shares of Common Stock, which is 94% of the total number of
shares of Common Stock outstanding and entitled to vote at the Annual Meeting
and which constituted a quorum for purposes of voting on each of the matters
submitted to the stockholders for their vote.
(3) I tabulated the votes with respect to the election of directors, and
Jean-Pierre M. Ergas received 7,866,291 votes and John T. Stirrup received
7,186,562 votes.
(4) Each of Jean-Pierre M. Ergas and John T. Stirrup received a plurality
of the votes cast by the holders of the Common Stock and I hereby declare and
certify to the Secretary of the Company that each of Jean-Pierre M. Ergas and
John T. Stirrup has been duly elected as a director of the Company.
<PAGE>
(5) I tabulated the votes with respect to the resolution regarding approval
of the fourth amendment and restatement of the BWAY Corporation 1995 Long-Term
Incentive Plan and such proposal received the number of votes set forth below:
Number of Votes
---------------
For 4,811,901
Against 3,122,198
Abstain 60,673
Since a majority of the outstanding shares of the Common Stock were voted for
adoption, I hereby declare and certify to the Secretary of the Company that such
resolution has been adopted by the stockholders of the Company.
(6) I tabulated the votes with respect to the resolution regarding
ratification of the appointment of Deloitte & Touche LLP as independent public
accountants for the fiscal year ending October 1, 2000 and such proposal
received the number of votes set forth below:
Number of Votes
---------------
For 8,692,959
Against 46,461
Abstain 25,593
Since a majority of the votes cast by the holders of the Common Stock present
and voting at the meeting were votes for approval, I hereby declare and certify
to the Secretary of the Company that such resolution has been approved by the
stockholders of the Company.
* * * * *
<PAGE>
IN WITNESS WHEREOF, I have executed this Certificate the 25th day of
February, 2000.
By: /s/ Marilyn Brown
-----------------------
Print: Marilyn Brown
----------------------
on behalf of Harris Trust and Savings
Bank
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) FOR THE THREE AND SIX
MONTH PERIODS ENDED APRIL 2, 2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 6-MOS
<FISCAL-YEAR-END> OCT-01-2000 OCT-01-2000
<PERIOD-START> JAN-03-2000 OCT-04-1999
<PERIOD-END> APR-02-2000 APR-02-2000
<CASH> 199 199
<SECURITIES> 0 0
<RECEIVABLES> 50,118 50,118
<ALLOWANCES> 604 604
<INVENTORY> 57,527 57,527
<CURRENT-ASSETS> 126,291 126,291
<PP&E> 192,027 192,027
<DEPRECIATION> 52,192 52,192
<TOTAL-ASSETS> 361,449 361,449
<CURRENT-LIABILITIES> 92,992 92,992
<BONDS> 157,300 157,300
0 0
0 0
<COMMON> 99 99
<OTHER-SE> 79,370 79,370
<TOTAL-LIABILITY-AND-EQUITY> 361,449 361,449
<SALES> 119,729 226,468
<TOTAL-REVENUES> 119,729 226,468
<CGS> 102,361 197,763
<TOTAL-COSTS> 112,793 217,596
<OTHER-EXPENSES> 5,866 5,685
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 4,327 8,217
<INCOME-PRETAX> (3,257) (5,030)
<INCOME-TAX> (1,934) (2,741)
<INCOME-CONTINUING> (1,323) (2,289)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (1,323) (2,289)
<EPS-BASIC> (.14) (.25)
<EPS-DILUTED> (.14) (.25)
</TABLE>
