-----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, LmAB4LL3IxFFnHtNYsS5RO+Lj0xD3kZO/iu1gme3buMoLsZTYxS1UXrTI0P2tP0g x9syRJ3/NqSr1OuoG7WgmA== 0000950152-98-006630.txt : 19980813 0000950152-98-006630.hdr.sgml : 19980813 ACCESSION NUMBER: 0000950152-98-006630 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980812 EFFECTIVENESS DATE: 19980812 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MEAD CORP CENTRAL INDEX KEY: 0000064394 STANDARD INDUSTRIAL CLASSIFICATION: PAPERBOARD MILLS [2631] IRS NUMBER: 310535759 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-61285 FILM NUMBER: 98684043 BUSINESS ADDRESS: STREET 1: MEAD WORLD HEADQUARTERS STREET 2: COURTHOUSE PLZ NORTHEAST CITY: DAYTON STATE: OH ZIP: 45463 BUSINESS PHONE: 5134956323 S-8 1 THE MEAD CORP FORM S-8 1 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------- THE MEAD CORPORATION (Exact Name of Registrant as Specified in its Charter) OHIO 31-0535759 (State of Incorporation) (I.R.S. Employer Identification Number) MEAD WORLD HEADQUARTERS COURTHOUSE PLAZA NORTHEAST DAYTON, OHIO 45463 (Address of Registrant's principal executive offices) THE MEAD CORPORATION EXECUTIVE CAPITAL ACCUMULATION PLAN (Full Title of the Plan) DAVID L. SANTEZ ASSISTANT SECRETARY AND ASSOCIATE GENERAL COUNSEL THE MEAD CORPORATION MEAD WORLD HEADQUARTERS COURTHOUSE PLAZA NORTHEAST DAYTON, OHIO 45463 (937) 495-6323 (Name, address, including zip code, and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Maximum Amount of Amount to be Offering Price Per Aggregate Offering Registration Title of Securities to be Registered Registered Share Price Fee - ----------------------------------------------------------------------------------------------------------------------- Deferred Compensation Obligations (1) $50,000,000 100% $50,000,000 $14,750 - -------------------- (1) The Deferred Compensation Obligations being registered are unsecured obligations of The Mead Corporation to pay deferred compensation in the future in accordance with the terms of The Mead Corporation Executive Capital Accumulation Plan.
================================================================================ 2 PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The information required by Part I of this Registration Statement on Form S-8 (the "Registration Statement") is not being filed herewith pursuant to the Note to Part I of Form S-8. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. ------- ---------------------------------------- The following documents filed by The Mead Corporation (hereafter, the "Registrant" or the "Company") with the Securities and Exchange Commission are incorporated herein by reference as of their respective dates of filing: (a) The Annual Report of the Company on Form 10-K for the year ended December 31, 1997, as amended by Amendment No. 1 and Amendment No. 2, filed pursuant to Section 13 of the Securities Exchange Act of 1934 ("Exchange Act"). (b) The Quarterly Reports of the Company on Form 10-Q for the quarters ended March 29, 1998 and June 28, 1998, filed pursuant to Section 13 of the Exchange Act. (c) The Current Report of the Company on Form 8-K dated January 23, 1998, filed pursuant to Section 13 of the Exchange Act. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 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 remaining unsold, shall be deemed to be incorporated by reference and to be a part hereof from the date of filing such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. ------- -------------------------- Under The Mead Corporation Executive Capital Accumulation Plan, as amended (the Plan"), the Company will provide eligible employees the opportunity to defer receipt of the following: (1) a specified percentage of their base salary, annual cash incentive awards and the cash portion of long-term incentive awards, (2) lump sum payments scheduled to be made under The Mead Supplemental Executive Retirement Plan, The Mead Corporation Excess Earnings II-1 3 Benefit Plan, and The Mead Corporation Section 415 Excess Benefit Plan, and (3) in some circumstances, cash severance benefits payable in connection with termination of employment. The Plan also provides that in certain circumstances, the Company will make certain matching contributions to the accounts of Plan participants, and receipt of such matching contributions by the Plan participants likewise is deferred under the Plan. The obligations of the Company under the Plan to make payments to the Plan participants in the future in accordance with the terms of the Plan will be unsecured general obligations of the Company, and will rank pari passu with other unsecured and unsubordinated indebtedness of the Company outstanding from time to time. An aggregate principal amount of $50,000,000 of such obligations of the Company are being registered hereunder and are referred to herein as the "Deferred Compensation Obligations." The description of the Deferred Compensation Obligations set forth in this Item 4 is qualified in its entirety by reference to the Plan, which is an exhibit to this Registration Statement. The amount of compensation and other amounts to be deferred by each Plan participant during any calendar year and the length of time of the deferral will be determined in accordance with the Plan based on elections made by the participant. Each Deferred Compensation Obligation will be payable in accordance with the terms of the Plan. The Plan is administered by the Compensation Committee of the Company. Each participant's account established for a calendar year will be credited with compensation and other amounts that the participant elects to defer for that year, Company contributions and any gains (or losses) deemed to be incurred thereon as a result of choices made by Plan participants among hypothetical investment mediums for that year. All payments to participants in respect of their Deferred Compensation Obligations will be subject to withholding for applicable taxes. A participant's right to the Deferred Compensation Obligations cannot be transferred, pledged or assigned (except upon the death or incompetency of the participant). The Deferred Compensation Obligations are not subject to the debts or other third party claims of any person entitled to receive benefits under the Plan. The Compensation Committee may amend any or all of the provisions of the Plan at any time, but no Plan amendment may reduce a participant's account balance to less than the amount he or she would have been entitled to receive on the later of the effective date of the amendment or the date on which the amendment is adopted. The Compensation Committee may also terminate the Plan at any time. When the Plan is terminated, at least two hypothetical investment mediums must be maintained until the aggregate balances of all participant accounts have been distributed, and distributions from the Plan are to continue to be made under the terms of the Plan. Item 5. Interests of Named Experts and Counsel. ------- --------------------------------------- Not Applicable. II-2 4 Item 6. Indemnification of Directors and Officers. ------- ------------------------------------------ Section 2 of Article V of the Regulations of the Registrant provides for the indemnification by the Registrant of its officers, directors, employees and others against certain liabilities and expenses. Such provision provides different treatment for (i) cases other than those involving actions or suits by or in the right of the Registrant and (ii) cases involving actions or suits by or in the right of the Registrant. In the first category, the Registrant indemnifies each director, officer, employee and agent of the Registrant and each person who services another organization at the request of the Registrant, against expenses, including attorneys' fees, judgments, decrees, fines, penalties and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was in such position or so serving, if such person acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any matter the subject of a criminal action, suit or proceeding, if such person had no reasonable cause to believe that such person's conduct was unlawful. In the second category, the Registrant indemnifies each director, officer, employee and agent of the Registrant and each person who serves another organization at the request of the Registrant, against expenses, including attorneys' fees, actually and reasonably incurred by such person in connection with the defense or settlement of any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in its favor, by reason of the fact that such person is or was in such position or so serving, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant, except that no indemnification shall be made in respect of any matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of such person's duty to the Registrant unless and only to the extent that a court of common pleas, or the court in which such action or suit was brought, determines that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses. Any such indemnification, unless ordered by a court, may be made by the Registrant only as authorized in the specific case upon a determination that indemnification of such person is proper in the circumstances because such person has met the applicable standard of conduct. Such determination must be made (a) by a majority vote of a quorum consisting of directors of the Registrant who were not and are not parties to or threatened with any such action, suit or proceeding, or (b) if such a quorum is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Registrant or the person to be indemnified in the last five years, or (c) by the shareholders, or (d) by the Court of Common Pleas or the court in which such action, suit or proceeding was brought. Any determination made by the disinterested directors or by independent legal counsel must be promptly communicated to the person who threatened or brought an action or suit by or in the right of the Registrant and such person may, within ten days, petition an appropriate court to review the reasonableness of such determination. II-3 5 To the extent that a person covered by the indemnification provisions of the Regulations has been successful on the merits or otherwise in defense of any action referred to above, indemnification of such person against expenses is mandatory. The Regulations also provide that expenses, including attorneys' fees, amounts paid in settlement, and (except in the case of any action by or in the right of the Registrant) judgments, decrees, fines and penalties incurred in connection with any potential, threatened, pending or completed action or suit by any person by reason of the fact that he is or was a director, officer, employee or agent of the Registrant or is or was serving another organization at the request of the Registrant may be paid or reimbursed by the Registrant, as authorized by the Board of Directors upon a determination that such payment or reimbursement is in the best interests of the Registrant. The Regulations also provide that, with certain limited exceptions, a director will be liable in damages for any action he takes or fails to take as a director only if it is proved by clear and convincing evidence that such action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Registrant or undertaken with reckless disregard for the best interests of the Registrant. The Regulations also provide that, with certain limited exceptions, expenses incurred by a director in defending an action must be paid by the Registrant as they are incurred in advance of the final disposition, if the director agrees (i) to repay such advances if it is proved by clear and convincing evidence that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Registrant or undertaken with reckless disregard for the Registrant's best interests and (ii) to reasonably cooperate with the Registrant concerning the action. The Registrant has entered into indemnification agreements with its directors. The agreements provide that the Registrant will promptly indemnify each director to the fullest extent permitted by applicable law and that the Registrant will advance expenses under the circumstances permitted by Ohio law. The agreements also provide that the Registrant is to take certain actions upon the occurrence of certain events that represent a change in control of the Registrant, including establishment of a $10 million escrow account as security for certain of the Registrant's indemnification obligations. While not requiring the maintenance of directors' and officers' liability insurance, the indemnification agreements do require that the directors be provided with the maximum coverage if such insurance is maintained and that, in the event of any reduction in, or cancellation of, present directors' and officers' liability insurance coverage, the Registrant will stand as self-insurer with respect to the coverage not retained and will indemnify the directors against any loss resulting from any reduction in, or cancellation of, such insurance coverage. The agreements also provide that the Registrant may not bring any action against a director more than two years (or such shorter period as may be applicable under the law) after the date a cause of action accrues. The Registrant purchased, effective for a period from August 1, 1998 through August 1, 1999, an insurance policy under which, subject to the limitations described below, the insurer performs for the Registrant its obligation of indemnifying officers and directors. The insurer is II-4 6 obligated, subject to such limitations, to pay on behalf of the Registrant amounts in excess of $500,000 to which any director or officer of the Registrant shall be entitled by reason of his right to indemnification by the Registrant, provided that such right to indemnification arises in connection with the defense of any action, suit or proceeding to which such director or officer may be a party or with which such director or officer may be threatened during the one-year period covered by this policy. The policy does not, of course, cover any matter that is uninsurable under law. Such $500,000 deduction applies in respect of each properly established claim to indemnification. If more than one claim to indemnification arises out of the same act or interrelated acts, such claims to indemnification will be treated as one and only one retention of $500,000 shall be applied. The maximum liability of the insurer is $25,000,000. Effective August 1, 1998, the Registrant purchased excess policies providing additional annual limits of $75,000,000 through August 1, 1999. In conjunction with the above-described insurance, the Registrant maintains insurance designed to protect the individual director or officer against specified expenses and liabilities, including those arising out of negligence in the performance of duty, with respect to which the Registrant does not provide indemnification. The individual policies contain the same maximum liability provisions as described hereinbefore with no deductibles. Item 7. Exemption from Registration Claimed. ------- ------------------------------------ Not Applicable. Item 8. Exhibits. ------- --------- See Exhibit Index following the signature pages to this Registration Statement. Item 9. Undertakings. ------- ------------- The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed II-5 7 with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraph (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by 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. (4) 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. (5) 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 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. II-6 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dayton, State of Ohio, on August 6, 1998. THE MEAD CORPORATION By /s/ Jerome F. Tatar ------------------------------------- Jerome F. Tatar Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William R. Graber, Thomas E. Palmer and Jerome F. Tatar, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Date: August 6, 1998 By /s/ Jerome F. Tatar ------------------------------------- Jerome F. Tatar President, Chief Executive Officer and Director (principal executive officer) II-7 9 Date: August 6, 1998 By /s/ William R. Graber ---------------------------------------- William R. Graber Vice President and Chief Financial Officer (principal financial officer) Date: August 6, 1998 By /s/ Gregory T. Geswein ---------------------------------------- Gregory T. Geswein Vice President and Controller (principal accounting officer) Date: August 6, 1998 By /s/ John C. Bogle ---------------------------------------- John C. Bogle Director Date: August 6, 1998 By /s/ John G. Breen ---------------------------------------- John G. Breen Director Date: August 6, 1998 By /s/ William E. Hoglund ---------------------------------------- William E. Hoglund Director Date: August 6, 1998 By /s/ James G. Kaiser ---------------------------------------- James G. Kaiser Director Date: August 6, 1998 By /s/ Robert J. Kohlhepp ---------------------------------------- Robert J. Kohlhepp Director Date: August 6, 1998 By /s/ John A. Krol ---------------------------------------- John A. Krol Director II-8 10 Date: August 6, 1998 By /s/ Susan J. Kropf ---------------------------------------- Susan J. Kropf Director Date: August 6, 1998 By /s/ Charles S. Mechem, Jr. ---------------------------------------- Charles S. Mechem, Jr. Director Date: August 6, 1998 By /s/ Lee J. Styslinger, Jr. ---------------------------------------- Lee J. Styslinger, Jr. Director Date: August 6, 1998 By /s/ J. Lawrence Wilson ---------------------------------------- J. Lawrence Wilson Director II-9 11
EXHIBIT INDEX Exhibit Number Description of Exhibit - ------ ---------------------- 4.1 The Mead Corporation Executive Capital Accumulation Plan was filed as Exhibit (10)(1) to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended July 2, 1995........................2 4.2 First Amendment of The Mead Corporation Executive Capital Accumulation Plan was filed as Exhibit 10(4) to the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 30, 1997..................................................................2 4.3 Second Amendment of The Mead Corporation Executive Capital Accumulation Plan was filed as Exhibit (10)(xxvi) to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1997...............................................................2 5 Opinion of Thompson Hine & Flory LLP............................................1 23.1 Consent of Thompson Hine & Flory LLP (contained in Opinion filed as Exhibit 5).............................................................1 23.2 Consent of Deloitte & Touche LLP................................................1 24 Powers of Attorney (contained in the signature pages following Part II of this Registration Statement).........................................1 - ---------------------- 1 - Filed herewith 2 - Incorporated by Reference
EX-5 2 EXHIBIT 5 1 Exhibit 5 THOMPSON HINE & FLORY LLP ------------------ Attorneys at Law August 12, 1998 The Mead Corporation Mead World Headquarters Courthouse Plaza Northeast Dayton, Ohio 45463 Re: Executive Capital Accumulation Plan ----------------------------------- Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of deferred compensation obligations (the "Obligations") of The Mead Corporation, an Ohio corporation (the "Company"), to be offered and sold under the Company's Executive Capital Accumulation Plan (the "Plan"). As counsel for the Company, we have examined and are familiar with the Plan and such other documents, records, certificates and other instruments as we have deemed necessary for purposes of this opinion. Based upon the foregoing, and upon investigation of such other matters as we considered appropriate to permit us to render an informed opinion, it is our opinion that the Obligations, when sold pursuant to the terms of the Plan, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Plan, except as enforceability (i) may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally, and (ii) is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). We are members of the bar of the State of Ohio and do not express any opinion herein concerning any laws other than the laws of the State of Ohio. This opinion is solely for your information in connection with the Registration Statement and is not to be quoted or otherwise referred to in any of your financial statements or public releases, filed with any governmental agency (except as set forth below), or given to any other person without our prior written 2 consent. This opinion may not be relied upon by any other person, or used by you for any other purpose, without our prior written consent. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Thompson Hine & Flory LLP DAN:PCN EX-23.2 3 EXHIBIT 23.2 1 Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of The Mead Corporation on Form S-8 of our report dated January 22, 1998, appearing in the Annual Report on Form 10-K of The Mead Corporation for the year ended December 31, 1997. /s/ DELOITTE & TOUCHE LLP - ------------------------- DELOITTE & TOUCHE LLP Dayton, Ohio August 7, 1998 -----END PRIVACY-ENHANCED MESSAGE-----