- Securities Registration: Employee Benefit Plan (S-8)
December 11 2009 - 12:18PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
KapStone
Paper and Packaging Corporation
(Exact Name of
Registrant as Specified in Its Charter)
Delaware
(State or Other
Jurisdiction of Incorporation or Organization)
20-2699372
(I.R.S. Employer
Identification No.)
1101 Skokie Boulevard.
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Suite 300
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Northbrook, IL
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60062
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(Address of
Principal Executive Offices)
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(Zip Code)
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KapStone Paper and Packaging Corporation
2009 Employee Stock Purchase Plan
Timothy P. Davisson
General Counsel
KapStone Paper and Packaging Corporation
1101 Skokie Boulevard, Suite 300
Northbrook, IL 60062
(Name and Address of Agent for Service)
847-239-8800
(Telephone number,
including area code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of Securities
To Be Registered
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Amount To Be
Registered(1)
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Maximum Offering
Price Per Share(2)
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Maximum Aggregate
Offering Price
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Amount of
Registration Fee
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Common stock,
par value $.0001 per share
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500,000
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$
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7.955
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$
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3,977,500
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$
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221.94
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(1)
Pursuant to Rule 416(a) under the Securities
Act of 1933, this Registration Statement also covers an indeterminate number of
shares of common stock which may be issued by reason of stock splits, stock
dividends or similar corporate events.
(2)
Computed for the purpose of determining the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended, on the basis of the price at which the options covered by
this Registration Statement may be exercised, which was equal to the average of
the high and low price per share of common stock on December 8, 2009, as
reported on the NASDAQ.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by
Reference.
We hereby incorporate by
reference into this registration statement the following documents previously
filed with the Securities and Exchange Commission (the SEC):
(1)
Our Annual Report on Form 10-K for the year ended
December 31, 2008, filed on March 31, 2009;
(2)
Our Current Report on Form 8-K filed on April 1,
2009;
(3)
Our Quarterly Report on Form 10-Q for the quarter
ended March 31, 2009, filed on May 11, 2009;
(4)
Our Quarterly Report on Form 10-Q for the quarter
ended June 30, 2009, filed on July 30, 2009;
(5)
Our Current Report on Form 8-K filed on October 5,
2009; and
(6)
Our Quarterly Report on Form 10-Q for the quarter
ended September 30, 2009, filed on November 4, 2009.
All documents filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 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 shares of common
stock offered hereby have been sold or which de-registers all shares of common
stock then remaining unsold, shall be deemed to be incorporated by reference
into this registration statement and to be part hereof from the date of the
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 or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any 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.
Kapstone
Paper and Packaging Corporation is a corporation organized under the laws of
the State of Delaware. Section 145
of the Delaware General Corporation Law (DGCL) provides that a corporation has the power to
indemnify a director, officer, employee or agent of the corporation and certain
other persons serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an action or
proceeding to which he is or is threatened to be made a party by reason of such
position, if such person shall have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, in any criminal proceeding, if such person had no reasonable
cause to believe his conduct was unlawful; provided that, in the case of
actions brought by or in the right of the corporation, no indemnification shall
be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under the
circumstances.
Paragraph B of Article Eighth
of our certificate of incorporation provides: The Corporation, to the full
extent permitted by Section 145 of the DGCL, as amended from time to time,
shall indemnify all persons whom it may
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indemnify pursuant
thereto. Expenses (including attorneys fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding for which such officer or director may be entitled
to indemnification hereunder shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized hereby. Article VII
of our amended and restated bylaws are to similar effect.
Item 7.
Exemption from Registration
Claimed.
Not applicable.
Item 8.
Exhibits.
EXHIBIT
NUMBER
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DESCRIPTION OF EXHIBIT
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4.1
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2009 Employee Stock
Purchase Plan
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5.1
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Opinion of
Sidley & Austin LLP
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23.1
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Consent of Deloitte
& Touche LLP
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23.2
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Consent of
Ernst & Young LLP
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24.1
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Power of Attorney
(included as part of the signature page of this registration statement)
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Item 9.
Undertakings.
The undersigned
Registrant undertakes:
(1)
To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement to:
(i)
Include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii)
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 percent change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement.
(iii)
Include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in the registration statement;
(2)
That, for determining liability under the Securities
Act of 1933, treat each post-effective amendment as a new registration
statement relating to the securities offered, and the offering of the
securities at that time to be the initial bona fide offering thereof.
(3)
To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
(4)
That, for determining liability of the undersigned
Registrant under the Securities Act 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:
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(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.
(5)
That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants 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
plans 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.
(6)
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.
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SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and authorized this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Chicago, state of Illinois, on this 11th day of December,
2009.
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KAPSTONE PAPER AND PACKAGING
CORPORATION
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By:
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/s/ Roger W. Stone
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Roger W. Stone
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Chief Executive Officer
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POWER OF
ATTORNEY
KNOW ALL MEN BY
THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Roger Stone and Matthew Kaplan his true and lawful attorney-in-fact,
with full power of substitution and re-substitution for him and in his 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, hereby ratifying and
confirming all that said attorney-in-fact or his substitute, each acting alone,
may lawfully do or cause to be done by virtue thereof. In accordance with the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities on this 8th day of December, 2009.
SIGNATURE
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TITLE
(CAPACITY)
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/s/ Roger W.
Stone
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Chairman of the Board
and Chief Executive Officer
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Roger W. Stone
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/s/ Andrea
Tarbox
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Chief Financial Officer
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Andrea Tarbox
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/s/ Matthew
Kaplan
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President, Secretary
and Director
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Matthew Kaplan
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/s/ John Chapman
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Director
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John Chapman
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/s/ James
Doughan
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Director
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James Doughan
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/s/ Jonathan
Furer
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Director
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Jonathan Furer
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/s/ Ronald
Gidwitz
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Director
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Ronald Gidwitz
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/s/ Brian
Gamache
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Director
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Brian Gamache
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/s/ Muhit Rahman
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Director
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Muhit Rahman
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/s/ S. Jay
Stewart
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Director
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S. Jay Stewart
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/s/ David Storch
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Director
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David Storch
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EXHIBIT
INDEX
EXHIBIT
NUMBER
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DESCRIPTION OF EXHIBIT
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4.1
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2009 Employee Stock
Purchase Plan
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5.1
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Opinion of
Sidley & Austin LLP
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23.1
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Consent of Deloitte
& Touche LLP
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23.2
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Consent of
Ernst & Young LLP
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24.1
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Power of Attorney
(included as part of the signature page of this registration statement)
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