As filed with the Securities and Exchange Commission on April 30, 2003
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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ROCK-TENN COMPANY
(Exact name of registrant as specified in its charter)
GEORGIA 62-0342590
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
504 THRASHER STREET 30071
NORCROSS, GEORGIA (Zip Code)
(Address of principal executive offices)
ROCK-TENN COMPANY
SUPPLEMENTAL RETIREMENT SAVINGS PLAN
(Full title of the plan)
STEVEN C. VOORHEES Copies to:
CHIEF FINANCIAL OFFICER E. WILLIAM BATES, II
ROCK-TENN COMPANY KING & SPALDING LLP
504 THRASHER STREET 1185 AVENUE OF THE AMERICAS
NORCROSS, GEORGIA 30071 NEW YORK, NEW YORK 10036-4003
(Name and address of agent for service)
770-448-2193
(Telephone number, including area code, of
agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER SECURITY AGGREGATE OFFERING PRICE REGISTRATION FEE
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Supplemental Retirement
Savings Plan Deferred
Compensation Obligations (1) $2,000,000 (2) 100% $2,000,000 (2) $161.80
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(1) The deferred compensation obligations are unsecured obligations of
Rock-Tenn Company to pay deferred compensation in the future in
accordance with the terms of the Rock-Tenn Company Supplemental
Retirement Savings Plan.
(2) Estimated solely for the purpose of computing the registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been previously filed by us with the
Securities and Exchange Commission and are hereby incorporated by reference
into this registration statement as of their respective dates:
(a) Our Annual Report on Form 10-K for the fiscal year ended
September 30, 2002;
(b) Our Quarterly Report on Form 10-Q for the quarter ended
December 31, 2002;
(c) Our Current Report on Form 8-K filed on April 14, 2003; and
(d) Our Current Report on Form 8-K filed on April 22, 2003.
In addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act of 1934, as amended, which we refer to
as the "Exchange Act," subsequent to the date of this registration statement
and prior to the filing of a post-effective amendment to this registration
statement which indicates that all securities offered hereunder have been sold
or which deregisters all such securities then remaining unsold shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of the filing of such documents (we refer to such
documents, and the documents enumerated above, as the "Incorporated
Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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 Rock-Tenn Company Supplemental Retirement Savings Plan,
which we refer to as the "Plan," we will provide each of our employees and
those of our affiliates who is a highly compensated employee and who is
designated by the Compensation and Options Committee of our Board of Directors
as eligible to participate in the Plan, the opportunity to elect to defer a
specified percentage of his or her "eligible base salary", and his or her
"eligible bonus", if any, and to have this amount, plus imputed investment
gains or losses thereon, paid at a specified time in the future.
The Plan is a nonqualified unfunded deferred compensation plan
sponsored and maintained by us, and is intended to provide participants with an
opportunity to supplement their retirement income through deferral of current
compensation. Amounts deferred and payable under the Plan, which we refer to as
the "Obligations," are our unsecured obligations, and will rank equally with
our other unsecured and unsubordinated indebtedness outstanding from time to
time. However, our right, and therefore the right of our creditors (including
participants in the Plan), to participate in the distribution of the assets of
any subsidiary or affiliate of our company upon its liquidation or
reorganization or otherwise is necessarily subject to the claims of creditors
of the subsidiary or affiliate, except to the extent that claims of our company
itself as a creditor of the subsidiary or affiliate may be recognized. To the
extent compensation deferred under the Plan by a highly compensated employee is
payable to such employee by one of our affiliates, we will direct the affiliate
to defer payment of such salary and bonus in accordance with the Plan, and the
Obligations arising from such deferred compensation shall also be unsecured
general obligations of our affiliate.
Each participant elects the amount of eligible base salary and
eligible bonus to be deferred. Each Obligation will be payable on a date
selected by us pursuant to the terms of the Plan. The Obligations generally are
payable after termination of the participant's employment or in certain
emergency situations. Each participant's account will be adjusted for
investment gains and losses as if the credits to the participant's account had
been invested in the benchmark investment alternatives available under the Plan
in accordance with the participant's investment election or elections (or
default election or elections) as in effect from time to time. All such
adjustments will be made at the same time and in accordance with the same
procedures followed under our 401(k) Plan for crediting investment gains and
losses to a participant's account under the 401(k) Plan. The Obligations are
denominated and payable in United States dollars.
The benchmark investment alternatives available under the Plan are the
same as the investment alternatives available under the Rock-Tenn Company
401(k) Retirement Savings Plan for Salaried and Non-Union Hourly Employees, as
amended from time to time, which we refer to as the "401(k) Plan", or are in
our view comparable to the investment alternatives available under our 401(k)
Plan. The benchmark investment alternatives available under the Plan will
initially include the following:
- Putnam Asset Allocation: Growth Portfolio; Putnam Asset
Allocation: Balanced Portfolio; Putnam Asset Allocation:
Conservative Portfolio; Putnam New Opportunities Fund; Putnam
OTC & Emerging Growth Fund; Putnam International Equity Fund;
Putnam Research Fund; The Putnam Fund for Growth and Income;
and Putnam Money Market Fund (Class A shares), which are
managed by Putnam Investment Management, LLC;
- PIMCO Total Return Fund, which is a separate investment
portfolio managed by Pacific Investment Management Company
LLC; and
- ABN AMRO/Montag & Caldwell Growth Fund, which is a separate
investment portfolio managed by Montag & Caldwell, Inc., a
wholly-owned subsidiary of ABN AMRO Asset Management
Holdings, Inc.
The prospectus relating to the Plan includes additional information
regarding the benchmark investment alternatives. If we change any of the
benchmark investment alternatives offered, we will supplement the prospectus
accordingly and distribute a new prospectus to all Plan participants.
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A participant's right or the right of participant's beneficiary, if
any, to the Obligations cannot be alienated, assigned, commuted or otherwise
encumbered.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each participant, at our
option or through operation of a mandatory or optional sinking fund or
analogous provision. However, we reserve the right to amend or terminate the
Plan at any time, provided the balance credited to each participant's account
immediately after any such amendment or termination shall be no less than the
balance credited to each such account immediately before such amendment or
termination and no amendment or termination shall adversely affect the right of
a participant or his or her beneficiary, if any, to the distribution of the
balance of such participant's account.
The Obligations are not convertible into another security of our
Company and will not have the benefit of a negative pledge or any other
affirmative or negative covenant on our part. No trustee has been appointed
having the authority to take action with respect to the Obligations and each
participant will be responsible for acting independently with respect to, among
other things, the giving of notices, responding to any request for consent,
waivers, or amendments pertaining to the Obligations, enforcing covenants, and
taking action upon a default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the offering of the securities
registered hereby have been passed upon for us by Robert B. McIntosh, Senior
Vice President, General Counsel and Secretary of our company. As of April 25,
2003, Mr. McIntosh owned 10,311 shares of our Class A common stock, par value
$.01 per share ("Class A Common Stock"), and had options to acquire 86,400
shares of Class A Common Stock
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our restated and amended articles of incorporation eliminate, to the
fullest extent permitted by applicable law, the personal liability of our
directors or our shareholders for monetary damages for breach of duty of care
or any other duty owed to us as a director. The Georgia Business Corporation
Code, or the Code, currently provides that such provision shall not eliminate
or limit the liability of a director (a) for any appropriation, in violation of
his duties, of any business opportunity of our company, (b) for acts or
omissions that involve intentional misconduct or a knowing violation of law,
(c) for unlawful corporate distributions or (d) for any transaction from which
the director received an improper personal benefit.
Under Article VI of our bylaws, and certain agreements entered into by
us and our directors, we are required to indemnify our directors and officers
and we are permitted to indemnify our employees or agents against the
obligation to pay any judgment, settlement, penalty or fine, and against
expenses (including attorney's fees and expenses), incurred in connection with
any action, suit or proceeding brought against such person because he was a
director, officer, employee or agent of our company, without regard to any
limitations in the Code; provided, however, that we shall have no obligation to
indemnify any such person in connection with any such proceeding if such person
is adjudged liable to us or is subjected to injunctive relief in favor of us
(a) for any appropriation, in violation of such person's duties, of
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any business opportunity of our company, (b) for acts or omissions that involve
intentional misconduct or a knowing violation of law, (c) for unlawful
corporate distributions or (d) for any transaction from which such person
received an improper personal benefit. Our directors and officers are insured
against losses arising from any claim against them as such for wrongful acts or
omissions, subject to certain limitations.
We have entered into indemnification agreements with each of our
directors. The indemnification agreements require, among other things, that we
indemnify our directors to the fullest extent permitted by law, and advance to
directors all related expenses, subject to reimbursement if it is subsequently
determined the indemnification is not permitted. We are also required to
indemnify in advance all expenses incurred by directors seeking to enforce
their rights under the indemnification agreements and to cover directors under
our directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by provisions in our restated and amended articles of incorporation
and bylaws, it provides greater assurance to directors that indemnification
will be available, because, as a contract, it may not be modified to eliminate
the rights it provides unilaterally by our board of directors or our
shareholders in the future.
Our directors and executive officers are insured against damages from
actions and claims incurred in the course of performing their duties, and we
are insured against expenses incurred in defending lawsuits arising from
certain alleged acts against directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Rock-Tenn Company Supplemental Retirement Savings Plan.
5.1 Opinion of Robert B. McIntosh, Esq.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robert B. McIntosh, Esq. (included as part of
Exhibit 5.1).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(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)
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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) 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 with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act 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.
(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 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.
(c) 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 Securities 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
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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
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 Norcross, State of Georgia, on the 29th day of
April, 2003.
ROCK-TENN COMPANY
By: /s/ James A. Rubright
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James A. Rubright
Chairman of the Board
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James A. Rubright and Steven C. Voorhees
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for such person and in his or her
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 attorneys-in-fact and
agents, and each of them, 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 and 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, and any of them, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
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/s/ James A. Rubright Director, Chairman of the Board and Chief April 29, 2003
------------------------------------------- Executive Officer (Principal Executive
James A. Rubright Officer)
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SIGNATURE TITLE DATE
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/s/ Steven C. Voorhees Executive Vice President and Chief April 29, 2003
------------------------------------------- Financial Officer (Principal Financial
Steven C. Voorhees and Accounting Officer)
/s/ Stephen G. Anderson Director April 25, 2003
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Stephen G. Anderson
April 25, 2003
/s/ J. Hyatt Brown Director
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J. Hyatt Brown
April 25, 2003
/s/ Robert B. Currey Director
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Robert B. Currey
April 25, 2003
/s/ Russell M. Currey Director
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Russell M. Currey
April 25, 2003
/s/ G. Stephen Felker Director
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G. Stephen Felker
/s/ Lawrence L. Gellerstedt, III Director April 25, 2003
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Lawrence L. Gellerstedt, III
/s/ John D. Hopkins Director April 25, 2003
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John D. Hopkins
/s/ James W. Johnson Director April 25, 2003
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James W. Johnson
/s/ John W. Spiegel Director April 25, 2003
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John W. Spiegel
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EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
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4.1 Rock-Tenn Company Supplemental Retirement Savings Plan.
5.1 Opinion of Robert B. McIntosh, Esq.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robert B. McIntosh, Esq. (included as part of Exhibit 5.1).
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