-----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, KcASluqdenPEHF8MzqVyubp/xk6ZLFQge5Nekpqo0gYBwba8gU2rYQV91NTdwMI0 zDfJR/BeLPU6C8L0NylHMA== 0000950172-98-000217.txt : 19980306 0000950172-98-000217.hdr.sgml : 19980306 ACCESSION NUMBER: 0000950172-98-000217 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980305 EFFECTIVENESS DATE: 19980305 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: IVEX PACKAGING CORP /DE/ CENTRAL INDEX KEY: 0000900367 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS, FOIL & COATED PAPER BAGS [2673] IRS NUMBER: 760171625 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-47397 FILM NUMBER: 98558369 BUSINESS ADDRESS: STREET 1: 100 TRI STATE DR STREET 2: SUITE 200 CITY: LINCOLNSHIRE STATE: IL ZIP: 60069 BUSINESS PHONE: 7089459100 MAIL ADDRESS: STREET 1: 100 TRI STATE DRIVE STREET 2: SUITE 200 CITY: LINCOLNSHIRE STATE: IL ZIP: 60069 FORMER COMPANY: FORMER CONFORMED NAME: IVEX HOLDINGS CORP DATE OF NAME CHANGE: 19940920 S-8 1 S-8 As filed with the Securities and Exchange Commission on March 5, 1998 Registration No. 333-____ - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ------------------------ IVEX PACKAGING CORPORATION (Exact name of registrant as specified in its charter) ------------------------ DELAWARE 76-0171625 (State of incorporation) (I.R.S. employer identification number) 100 TRI-STATE DRIVE, SUITE 200 LINCOLNSHIRE, ILLINOIS 60069 (Address of principal executive offices, including zip code) IVEX PACKAGING CORPORATION 1997 LONG TERM STOCK INCENTIVE PLAN AMENDED AND RESTATED IPC, INC. (FORMERLY NAMED IVEX PACKAGING CORPORATION) STOCK OPTION AND PURCHASE AGREEMENT (FULL TITLE OF THE PLANS) G. Douglas Patterson Vice President and General Counsel Ivex Packaging Corporation 100 Tri-State Drive, Suite 200 Lincolnshire, Illinois 60069 (847) 945-9100 (Name, address and telephone number, including area code, of agent for service) ------------------------ With Copies To: William R. Kunkel, Esq. Skadden, Arps, Slate, Meagher & Flom (Illinois) 333 West Wacker Drive Chicago, Illinois 60601 (312) 407-0700 ------------------------ CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of Title of Securities Amount to be Offering Price Aggregate Offering Registration to be Registered Registered per Share (1)(2) Price (2) Fee (3) ------------------- ------------ ----------------- ------------------ ------------ Common Stock, 4,931,200(4) $ 24.94 $ 122,984,128 $ 36,280 par value $.01 per share
(1) In accordance with Rules 457(c) and (h) under the Securities Act of 1933, as amended (the "Securities Act"), solely for the purpose of calculating the registration fee, the maximum offering price per share is based on the average of the high and low sale prices for a share of common stock of Ivex Packaging Corporation (the "Common Stock") on the Composite Tape of the New York Stock Exchange on March 3, 1998. (2) Estimated solely for the purpose of calculating the registration fee. (3) The registration fee has been calculated pursuant to Section 6(b) of the Securities Act. (4) Includes (i) 2,000,000 shares of Common Stock available for issuance under the Ivex Packaging Corporation 1997 Long Term Stock Incentive Plan (the "Stock Incentive Plan") and (ii)(a) 817,067 shares of Common Stock available for issuance pursuant to options to purchase Common Stock and (b) 2,114,133 shares of Common Stock issued under the Amended and Restated IPC, Inc. (formerly named Ivex Packaging Corporation) Stock Option and Purchase Agreement (the "Stock Option and Purchase Agreement"), plus such additional number of shares of Common Stock as may be issuable to prevent dilution under such plans. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION.* ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.* * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act and the Introductory Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") by the registrant, Ivex Packaging Corporation, a Delaware corporation (the "Company"), pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this registration statement: (1) Each of the Company's prospectuses, dated September 30, 1997, which were filed with the Commission on October 2, 1997, pursuant to Rule 424(b) under the Securities Act and which constitute a part of the Company's registration statement on Form S-1 (Registration No. 33-95436) (the "S-1 Prospectuses"). (2) The Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. (3) There are no other reports filed pursuant to Section 13(a) or Section 15(d) of the Exchange Act. (4) The description of the Common Stock contained in the S-1 Prospectuses under "Description of Capital Stock," which is also incorporated by reference in the Company's registration statement on Form 8-A, dated September 3, 1997, which was filed with the Commission pursuant to Section 12(b) of the Exchange Act. All documents subsequently filed by the Company 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 herein and to be a part hereof from the date of filing of 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 which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article Ninth of the Amended and Restated Certificate of Incorporation of the Company empowers the Company to indemnify its directors, officers, employees and agents to the extent and under the circumstances permitted by the General Corporation Law of Delaware (the "GCL"). The Amended and Restated By-Laws of the Company provide that directors and officers shall be indemnified against liabilities arising from their services as a director or officer of the Company to the fullest extent permitted by law. Section 145 of the GCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 also empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless, and only to the extent that, the Court of Chancery or the court in which such action was brought shall determine that despite the adjudication of liability such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 further provides that to the extent that a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation is empowered to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liabilities under Section 145. The Company's Stock Option and Purchase Agreement provides that all members of the committee administering such plan will not be liable for any action or determination made in good faith with respect to the plan or any award granted thereunder. In addition, the Company maintains liability insurance coverage for directors and officers, including, without limitation, coverage applicable in certain situations where the Company cannot pursuant to the GCL directly indemnify such directors and officers. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. A list of exhibits is set forth on the Exhibit Index which immediately precedes the exhibits and which is incorporated by reference herein. ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (1) To include any prospectus required by Section 10(a)(3) of the Securities Act; (2) 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; and (3) 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) and (a)(2) 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 Company pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) 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. (d) That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (e) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the 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 Securities Act and will be governed by the final adjudication of such issue. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that is 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 has been signed on its behalf by the undersigned, thereunto duly authorized in the City of Chicago, State of Illinois, on this 27th day of February, 1998. IVEX PACKAGING CORPORATION (Registrant) By: /s/ G. Douglas Patterson ---------------------------------- G. Douglas Patterson Vice President and General Counsel POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints G. Douglas Patterson his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all 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 attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on this 27th day of February 1998. NAME TITLE DATE ---- ----- ---- /s/ George V. Bayly Chairman of the Board, February 27, 1998 - --------------------------- President and Chief George V. Bayly Executive Officer (Principal Executive Officer) /s/ Frank V. Tannura Vice President and February 27, 1998 - --------------------------- Chief Financial Officer Frank V. Tannura and Director (Principal Financial Officer) /s/ David E. Wartner Corporate Controller February 27, 1998 - --------------------------- (Principal Accounting David E. Wartner Officer) /s/ Glenn R. August Director February 27, 1998 - --------------------------- Glenn R. August /s/ James R. Comeaux Director February 27, 1998 - --------------------------- James R. Comeaux /s/ Anthony P. Scotto Director February 27, 1998 - --------------------------- Anthony P. Scotto /s/ William J. White Director February 27, 1998 - --------------------------- William J. White EXHIBIT INDEX Exhibit No. Description of Exhibit - ----------- ---------------------- 3.1 Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-95436)). 3.2 Amended and Restated By-Laws of the Company (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-95436)). 4.1 Form of certificate representing shares of Common Stock (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-95436)). 5 Opinion and consent of Skadden, Arps, Slate, Meagher & Flom (Illinois). 23.1 Consent of Price Waterhouse LLP, independent auditors. 23.2 Consent of Skadden, Arps, Slate, Meagher & Flom (Illinois) (included in Exhibit 5). 24 Power of Attorney (included on the signature page hereto). 99.1 Ivex Packaging Corporation 1997 Long Term Stock Incentive Plan (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-95436)). 99.2 Amended and Restated IPC, Inc. (formerly named Ivex Packaging Corporation) Stock Option and Purchase Agreement (incorporated by reference to the Company's Registration Statement on Form S-1 (Registration No. 33-95436)). EX-5 2 EXHIBIT 5 - OPINION February 27, 1998 Ivex Packaging Corporation 100 Tri-State Drive, Suite 200 Lincolnshire, IL 60069 Re: Registration Statement on Form S-8 of Ivex Packaging Corporation Ladies and Gentlemen: We have acted as special counsel to Ivex Packaging Corporation, a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8, which is being filed by the Company with the Securities and Exchange Commission (the "Commission") on the date hereof (the "Registration Statement"), relating to the registration and issuance by the Company under the Securities Act of 1933, as amended (the "Act"), of up to an aggregate of 4,931,200 shares (the "Shares") of the Company's Common Stock, par value $.01 per share (the "Common Stock"), including (i) 2,000,000 shares of Common Stock available for issuance under the Company's 1997 Long-Term Stock Incentive Plan (the "Stock Incentive Plan") and (ii)(a) 817,067 shares of Common Stock available for issuance pursuant to options to purchase Common Stock and (b) 2,114,133 shares of Common Stock issued under the Amended and Restated IPC, Inc. (formerly named Ivex Packaging Corporation) Stock Option and Purchase Agreement (the "Stock Option and Purchase Agreement," and, together with the Stock Incentive Plan, the "Plans"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement; (ii) each of the Plans; (iii) the Amended and Restated Certificate of Incorporation and the Amended and Restated By-Laws of the Company, as presently in effect; (iv) a specimen certificate representing the Common Stock; and (v) copies of certain resolutions of the Board of Directors of the Company relating to the Plans, the Shares and related matters. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed, and have not independently established or verified, the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. In making our examination of documents executed or to be executed by parties other than the Company, we have assumed that such parties had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others. We assume that the Company will have at the time of the issuance of any Shares under the Plans at least that number of authorized but unissued shares of Common Stock equal to the number of Shares to be issued pursuant to the Plans. Members of our firm are admitted to the practice of law in the State of Illinois, and we do not express any opinion as to the laws of any other jurisdiction other than the Delaware General Corporation Law. Based upon and subject to the foregoing, and assuming the conformity of the certificates representing the Shares to the form of the specimen thereof examined by us and the due execution of such certificates, we are of the opinion that the Shares have been duly authorized by requisite corporate action by the Company, and, when issued, delivered and paid for in accordance with the terms and conditions of the Plans, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reference to our firm under the heading "Interests of Named Experts and Counsel" in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM (Illinois) EX-23 3 EXHIBIT 23.1 - CONSENT OF INDEPENDENT ACCOUNTANTS CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 21, 1997, except as to Notes 5 and 14, which are as of March 24, 1997, appearing on page 22 of Ivex Packaging Corporation's Annual Report on Form 10-K for the year ended December 31, 1996. Price Waterhouse LLP February 18, 1998 -----END PRIVACY-ENHANCED MESSAGE-----