-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HUEbR4vDJhzx3Odb7rHcsEvDNUNQCPUJ2DaB9iatsyKiESgYHwjz5KUA5yz08+nA a2ywsY4Vq8JlGZIQQkhaoQ== 0000052477-97-000004.txt : 19970505 0000052477-97-000004.hdr.sgml : 19970505 ACCESSION NUMBER: 0000052477-97-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970502 EFFECTIVENESS DATE: 19970502 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: IBP INC CENTRAL INDEX KEY: 0000052477 STANDARD INDUSTRIAL CLASSIFICATION: MEAT PACKING PLANTS [2011] IRS NUMBER: 420838666 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-26395 FILM NUMBER: 97594420 BUSINESS ADDRESS: STREET 1: IBP AVE STREET 2: P O BOX 515 CITY: DAKOTA CITY STATE: NE ZIP: 68731 BUSINESS PHONE: 4024942061 MAIL ADDRESS: STREET 1: IBP AVE STREET 2: P O BOX 515 CITY: DAKOTA CITY STATE: NE ZIP: 68731 FORMER COMPANY: FORMER CONFORMED NAME: IOWA BEEF PROCESSORS INC /PRED/ DATE OF NAME CHANGE: 19821109 FORMER COMPANY: FORMER CONFORMED NAME: IOWA BEEF PACKERS INC DATE OF NAME CHANGE: 19701130 S-8 1 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 IBP, inc. DELAWARE 42-0838666 IBP Avenue P. O. Box 515 Dakota City, Nebraska 68731-0515 1996 STOCK OPTION PLAN LONNIE O. GRIGSBY General Counsel IBP, inc. IBP Avenue P. O. Box 515 Dakota City, Nebraska 68731-0515 (402) 494-2061 CALCULATION OF REGISTRATION FEE ___________________________________________________________________ ___________________________________________________________________ Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Per Offering Registration Registered Registered Share* Price* Fee _____________________________________________________________________ _____________________________________________________________________ Common Stock, par value 3,500,000 $.05 per share shares $23.4375 $82,031,250 $24,857.95 _____________________________________________________________________ _____________________________________________________________________ * For purposes of calculation of registration fee only; pursuant to Rule 457(h), calculation is based on the average of the high and low prices for the Common Stock, par value $.05 per share, of issuer, on the New York Stock Exchange Composite Tape for April 25, 1997. (Calculation table on page 14) -1- TABLE OF CONTENTS Incorporation of Certain Documents by Reference. . . . 2 Experts and Counsel. . . . . . . . . . . . . . . . . . 2-3 Indemnification of Directors and Officers. . . . . . . 3-4 Undertakings . . . . . . . . . . . . . . . . . . . . . 4-6 Signatures . . . . . . . . . . . . . . . . . . . . . . 6-7 Exhibit Index. . . . . . . . . . . . . . . . . . . . . 8 INCORPORATION BY REFERENCE The following documents, which have been filed by IBP, inc. ("IBP") with the Commission, are incorporated by reference in this S-8 Registration Statement: 1. IBP's Annual Report to stockholders, which is incorporated by reference in the Annual Report on Form 10-K for the fiscal year ending December 28, 1996 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act"). 2. All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act by IBP since December 28, 1996. 3. The description of IBP's securities contained in IBP's Registration Statement on Form 10(No.1-6058) filed with the Commission pursuant to Section 12(g) of the Exchange Act, including any other amendment or report filed for the purpose of updating such description. 4. All documents subsequently filed by IBP pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. EXPERTS AND COUNSEL The legality of the common stock offered hereby under the Plan has been passed upon by L. O. Grigsby, General Counsel for IBP, who is eligible for awards pursuant to the Plan. The consolidated financial statements of IBP and its consolidated subsidiaries included or incorporated by reference to the Annual Report on Form 10-K for year ended December 28, 1996, which is incorporated by reference in this Registration Statement, have been so incorporated in reliance on the report of Coopers & Lybrand L.L.P. or Price Waterhouse LLP, independent public accountants, as indicated in the Annual Report, and are incorporated by reference herein in reliance upon the authority of said firms as experts in accounting and auditing in giving said reports. -2- The reports of independent public accountants relating to the audited financial statements and financial statement schedules of IBP in any documents filed by IBP pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, to the extent covered by consents thereto filed with the Commission, will be incorporated by reference in this Registration Statement in reliance upon the authority of such independent public accountants as experts in accounting and auditing in giving said reports to the extent that firm has examined those financial statements and financial statement schedules and consented to the use of their reports thereon. INDEMNIFICATION OF DIRECTORS AND OFFICERS The General Corporation Law of the State of Delaware and the By-laws of IBP provide for the indemnification of directors and officers under certain conditions. In addition, the directors and officers of IBP are insured under certain insurance policies insuring them against claims made during periods of the policies and against liabilities arising from such claims for certain wrongful acts in their capacities as directors and/or officers and for which they are not indemnified by IBP. Upon receiving the approval of IBP's stockholders on September 17, 1987, IBP's Certificate of Incorporation was amended to implement the provisions of Section 102(b)(7) of the Delaware General Corporation Law ("DGCL"), which Section permits corporations to adopt charter provisions which limit or eliminate personal liability of directors for certain breaches of their fiduciary duties. IBP's directors do not have personal liability to IBP or its stockholders for monetary damages for any breach of fiduciary duty as a director, except: (i) for any breach of the duty of loyalty to IBP or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law; (iii) for liability under Section 174 of the DGCL (involving certain unlawful payment of dividends, stock repurchases or stock redemptions); or (iv) for any transaction from which the directors derive an improper personal benefit. Except as described in the preceding sentence, a director does not have any liability arising out of actions involving negligence or gross negligence, including actions in response to acquisition proposals. IBP's Board of Directors voted on September 16, 1987 and its stockholders voted on September 17, 1987 to authorize IBP to enter into indemnification agreements with its directors and certain of its officers. Upon receiving such authorization, indemnification agreements were entered into with certain of IBP's directors and officers. Such indemnification agreements provide, among other things, for (i) indemnification to the fullest extent permitted by -3- law against any and all expenses, judgments, fines and amounts paid in settlement of any claim against a director unless it is determined, as provided in the indemnification agreement, that indemnification is not permitted under law; (ii) the prompt advancement of expenses to any director in connection with his or her defense against any threatened or pending claim; (iii) the creation of a trust in the event of potential change of control to provide a source of a payment of indemnification obligations of IBP; and (iv) a provision that no legal action be brought and no cause of action asserted against a director by or on behalf of IBP after the expiration of two (2) years from the date of accrual of such cause of action. Similar indemnification agreements may from time to time be entered into with officers of IBP or certain other employees or agents of IBP. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling IBP pursuant to the foregoing provisions, IBP has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. UNDERTAKINGS Pursuant to Item 512(a),(b),(e) and (h) of Regulation S-K, the undersigned registrant hereby undertakes: (a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by -4- reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (e) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest Annual Report to security holders that is incorporated by reference in the Prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth in the Prospectus, to deliver, or cause to be delivered to each person to whom the Prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the Prospectus to provide such interim financial information. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the -5- registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for the 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 Dakota Dunes, State of South Dakota, on April 30, 1997. IBP, inc. /s/ Robert L. Peterson ----------------------- Robert L. Peterson Chairman of the Board of Directors and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Robert L. Peterson and Lonnie O. Grigsby his/her true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys- in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. -6- Signature Title Date /s/ Robert L. Peterson 4/30/97 - ------------------------ Chairman of the Board, -------- Robert L. Peterson Chief Executive Officer, Director (principal executive officer) /s/ Larry Shipley 4/30/97 - ------------------------ Executive Vice President, -------- Larry Shipley Corporate Development, (principal financial officer) /s/ Craig J. Hart 4/30/97 - ------------------------ Vice President and -------- Craig J. Hart Controller /s/ Richard L. Bond 4/30/97 - ------------------------ President, Fresh Meats, -------- Richard L. Bond Director /s/ David C. Layhee 4/30/97 - ------------------------ President, Consumer -------- David C. Layhee Products, Director /s/ Eugene D. Leman 4/30/97 - ------------------------ President, Allied Group, -------- Eugene D. Leman Director /s/ John S. Chalsty 4/30/97 - ------------------------ Director -------- John S. Chalsty /s/ Wendy L. Gramm 4/30/97 - ------------------------ Director -------- Wendy L. Gramm /s/ Martin A. Massengale 4/30/97 - ------------------------ Director -------- Martin A. Massengale /s/ JoAnn R. Smith 4/30/97 - ------------------------ Director -------- JoAnn R. Smith /s/ Dale C. Tinstman 4/30/97 - ------------------------ Director -------- Dale C. Tinstman -7- EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION OF DOCUMENT PAGE 5 Opinion Regarding Legality 9 See Exhibit 5 Consent of Legal Counsel 9 23 Consents of Independent Accountants 11 See Signature Page Power of Attorney 6 27 Financial Data Schedule 99 Additional Exhibit - Calculation of Fees 14 -8- EX-5 2 EXHIBIT 5 April 30, 1997 IBP, inc. P.O. Box 515 Dakota City, NE 68731-0515 RE: Registration Statement on Form S-8 Ladies and Gentlemen: I am the General Counsel of IBP, inc., a Delaware Corporation (the "Company") and have acted as Counsel to the Company in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of an aggregate of 3,500,000 shares of its common stock, par value five cents per share (the "Shares"), issuable pursuant to awards made under the Company's 1996 Stock Option Plan (the "Plan"). For purposes of this opinion, I have examined such matters of law and originals, or copies certified or otherwise identified to my satisfaction, of such documents, corporate records and other instruments as I have deemed necessary. In my examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to the originals of all documents submitted to me as certified photostatic or conformed copies, and the authenticity of the originals of all such latter documents. I have also assumed the due execution and delivery of all documents where execution and delivery are prerequisites to the effectiveness thereof. Based upon the foregoing, I am of the opinion that the Shares when issued and delivered in accordance with the Plan will be legally issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to my name under the caption "Experts" in the Registration Statement. In giving this opinion and consent I do not admit that I am an expert with respect to any part of the Registration Statement within the meaning of the term "expert" as used in Section 11 in the Securities Act of 1933 as amended or the rules and regulations of the Securities and Exchange Commission thereunder (collectively, the "Act"), nor do I admit that I am in the category of persons whose consent is required by Section 7 of the Act. Sincerely, /s/ Lonnie O. Grigsby - --------------------- Lonnie O. Grigsby -10- EX-23 3 EXHIBIT 23 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8, relating to the 1996 Stock Option Plan, of our report dated January 24, 1997, which appears on page 23 of the 1996 Annual Report to Stockholders of IBP, inc., which is incorporated by reference in IBP's Annual Report on Form 10-K for the year ended December 28, 1996. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page 17a of such Annual Report on Form 10-K. We also consent to the reference to us under the heading "Experts and Counsel" in such Registration Statement. COOPERS & LYBRAND L.L.P. Omaha, Nebraska April 30, 1997 -12- CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 3, 1995 referred to on page 23 of the 1996 Annual Report to Stockholders of IBP, inc., which is incorporated by reference in IBP, inc.'s Annual Report on Form 10-K for the fiscal year ended December 28, 1996. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page 17b of such Annual Report on Form 10-K. We also consent to the reference to us under the heading "Experts and Counsel" in such registration statement. PRICE WATERHOUSE LLP Chicago, Illinois April 30, 1997 -13- EX-27 4
5 1,000 YEAR DEC-28-1996 DEC-28-1996 94,164 169,476 510,654 9,873 299,700 1,110,585 1,513,716 697,510 2,174,495 604,131 260,008 0 0 4,750 1,198,905 2,174,495 12,538,753 12,538,753 12,095,550 12,095,550 120,295 0 3,373 319,535 120,800 198,735 0 0 0 198,735 2.06 2.06
EX-99 5 EXHIBIT 99 CALCULATION OF FEE Number of Shares 3,500,000 (times) Offering Price x (Rule 457(h) - calculation is based on the average of the high and low prices of the Common Stock for one day on the $ 23.4375 New York Stock Exchange Composite ------------- Tape For April 25, 1997 Low ================== $23 1/8, High $23 3/4 Aggregate Offering Amount $ 82,031,250 ------------- (times) x Fee Charge Pursuant to Section 6(b) of the Securities Act is .000303030 1/33 of 1% of the Aggregate Offering Amount ================== FEE $ 24,857.95 ------------- -14- -----END PRIVACY-ENHANCED MESSAGE-----