s8compensationplan.htm
As
filed with the Securities and
Exchange Commission on June17,
2008.
Registration
No.
333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BUCKEYE
TECHNOLOGIES INC.
(Exact
name of Registrant as specified in its charter)
|
Delaware
|
1001
Tillman Street, Memphis,
TN 38112
|
62-1518973
|
|
(State
of Incorporation)
|
(Address
of principal executive offices) (Zip Code)
|
(I.R.S.
Employer
Identification
No.)
|
|
BUCKEYE
TECHNOLOGIES INC.
2007
OMNIBUS INCENTIVE COMPENSATION PLAN
(Full
Title of the Plan)
|
|
John
B. Crowe
Chairman
of the Board of Directors and
Chief
Executive Officer
Buckeye
Technologies Inc.
P.O.
Box 80407
1001
Tillman Street
Memphis,
Tennessee 38108-0407
(901)
320-8100
(Name,
address, and telephone number, including area code, of agent for
service)
|
|
With
a Copy to:
|
|
Thomas
J. Friedmann
Dechert
LLP
1775
I Street, NW
Washington,
DC 20006
(202)
261-3300
|
|
CALCULATION
OF REGISTRATION FEE
|
|
Title
Of Securities
To
Be
Registered
|
Amount
To
Be
Registered
|
Proposed
Maximum Offering Price
Per
Share (1)
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
Of
Registration
Fee
|
|
Common
Stock of Buckeye Technologies Inc., par value $.01 per share to be
issued
under the Plan (2)
|
3,500,000
shares
|
$9.51
|
$33,285,000
|
$1,308.10
|
|
(1) This
amount is based upon the average of the high and low sale prices
for
shares of common stock of Buckeye Technologies Inc. (the “Registrant”),
par value $.01 per share (the “Common Stock”), as reported on the New York
Stock Exchange on June 13, 2008, and is used solely for the purpose
of
calculating the registration fee in accordance with paragraphs (c)
and (h)
of Rule 457 under the Securities Act of 1933.
(2) Pursuant
to Rule 416(a), this Registration Statement shall also cover any
additional shares of Common Stock which become issuable under the
2007
Omnibus Incentive Compensation Plan by reason of any stock dividend,
stock
split, recapitalization or other similar transaction effected without
the
receipt of consideration, which results in an increase in the number
of
the outstanding shares of the Registrant.
|
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents are incorporated by reference in this registration
statement:
(a) The
Registrant’s annual report on Form 10-K for the fiscal year ended June 30, 2007,
filed on September 7, 2007, as amended by Form 10-K/A, filed on September 26,
2007, pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
“1934 Act”); and
(b) All
other reports filed by the Registrant pursuant to Section 13(c) or 15(d) of
the
1934 Act since June 30, 2007, including the Registrant’s quarterly reports for
the quarters ended September 30, 2007, December 31, 2007 and March 31, 2008,
filed on October 25, 2007, January 31, 2008 and May 6, 2008, respectively,
pursuant to Section 13(a) of the 1934 Act; and
(c) The
description of the Common Stock contained in the registration statement on
Form
S-3, filed on June 4, 1996, as amended by Amendment No. 1 thereto, filed on
June
11, 1996, and by Amendment No. 2 thereto, filed on June 27, 1996, including
any
amendment or report filed for the purpose of updating such description;
and
(d) All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act prior to the filing of a post-effective
amendment to this Registration Statement, which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, will be deemed to be incorporated by reference into this Registration
Statement. Each document incorporated by reference into this
Registration Statement will be deemed to be a part of this Registration
Statement from the date of the filing of such document with the Securities
and
Exchange Commission, or the SEC, until the information contained in such
document is superseded or updated by any subsequently filed document which
is
incorporated by reference into 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.
The
Company is
incorporated under the laws of the State of
Delaware. Section 145 of the
General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any person
who is, 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 such corporation), by
reason
of
the fact that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise.
The
indemnity may include expenses (including attorneys’ fees) judgments, fines and
amount paid in settlement actually
and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the
corporation's best interests and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his conduct
was illegal. A Delaware corporation
may indemnify any person who is, 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 by
reason of the
fact that such person was a
director, officer, employee or agent of such corporation, or is or
was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with
the defense or settlement of such action or
suit, provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
corporation's best interests except that no indemnification is
permitted without judicial approval if the officer or director is adjudged
to be
liable to the corporation. Where an officer or director
is successful on the merits or otherwise in the defense of
any action referred to above, the
corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
The
Company's Second Amended and
Restated Certificate of Incorporation provides for the indemnification of
directors and officers of the Company to the fullest extent permitted by Section
145.
In
that regard, the Second Amended
and Restated Certificate of Incorporation provides that the Company will
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
or officer of such corporation, or is or was serving at the request
of such corporation as a director, officer or member of
another corporation, partnership, joint venture, trust or other
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 such
corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause
to believe his conduct was
unlawful. Indemnification in connection with an
action or suit by or in the right of such corporation to
procure a judgment in its favor is limited to payment
of settlement of such an action or suit except that no
such indemnification may be made in respect of any claim, issue or
matter as to which such person will have been adjudged to be
liable for negligence or misconduct in the
performance of his duty to the indemnifying
corporation unless and only to
the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought determines that,
despite the adjudication of liability but in consideration of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court deems proper.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following exhibits are filed herewith or incorporated by reference as part
of
this Registration Statement.
5.1
Opinion of Dechert LLP (counsel to the Registrant).
23.1
Consent of Ernst & Young LLP.
23.2
Consent of Dechert LLP (contained in opinion filed as Exhibit 5.1 to
thisRegistration Statement).
24
Power of Attorney (set forth on signature page of this Registration
Statement).
(a)
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 with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective 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) of this
section do not apply if the registration statement is on Form S-8, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the registrant pursuant to section 13 or section 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.
That, for the purpose of determining liability under the Securities Act of
1933
to any purchaser:
i.
if the registrant is relying on Rule 430B (§230.430B of this
chapter):
A.
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
B.
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date
of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed
to
be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering
of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date;
or
ii.
if the registrant is subject to Rule 430C, each prospectus filed pursuant
to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no statement made in
a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in
the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first
use.
5.
That, for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities: the undersigned registrant undertakes that in a primary offering
of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities
to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be
a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
i.
any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
ii.
any free writing prospectus relating to the offering prepared by or on behalf
of
the undersigned registrant or used or referred to by the undersigned
registrant;
iii.
the portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
iv.
any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(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.
(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 SEC 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.
SIGNATURES
The
Registrant. 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 Memphis, State of Tennessee, on this 17th day
of
June 2008.
BUCKEYE
TECHNOLOGIES INC.
John
B.
Crowe
Chief
Executive Officer