Registration No. 333-            

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

 

REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933

 

ORCHIDS PAPER PRODUCTS COMPANY

(Exact name of registrant as specified in its charter)

Delaware (State of Incorporation)		23-2956944 (I.R.S. Employer Identification No.)

 

4826 Hunt Street

Pryor, Oklahoma 74361

(918) 825-0616

(Address of principal executive offices)  

 

Orchids Paper Products Company Nonqualified Stock Option Agreement
(Full title of the plan)

 

Keith R. Schroeder
Chief Financial Officer

Orchids Paper Products Company
4826 Hunt Street

Pryor, Oklahoma 74361
(918) 825-0616
(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copy to:
Donald E. Figliulo, Esq.

Polsinelli PC

161 N. Clark Street, Suite 4200

Chicago, IL 60601

312.463.6311

312.893.2164 (fax)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer	¨		Accelerated filer	x
Non-accelerated filer	¨  (Do not check if a smaller reporting company)		Smaller reporting company	¨

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities To be Registered		Amount to be Registered		Proposed Maximum Offering Price Per Share		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common stock, $0.001 par value per share		400,000(1)		$30.68(2)		$12,272,000		$1,581

(1)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this registration statement shall also cover any additional shares of Registrant’s common stock, par value $0.001 per share (the “Common Stock”), that become issuable pursuant to the Nonqualified Stock Option Agreement between the Registrant and Jeffrey Schoen by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock.

 

(2)

Estimated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee and is based upon the average ($30.68) of the high ($31.10) and low ($30.25) prices of the Registrant’s Common Stock as reported by the NYSE MKT on April 4, 2014.

 

 

 

EXPLANATORY NOTE

 

Orchids Paper Products Company (the “Registrant” or “Company”) is filing this Registration Statement on Form S-8 (this “Registration Statement”) to register 400,000 shares of common stock, par value $0.001 per share, of the Registrant (“Common Stock”) awarded under the Option Grant (defined below), subject to stockholder approval at the Registrant’s 2014 Special Meeting of Stockholders to be held April 9, 2014 (the “Special Meeting”).

 

In conjunction with the appointment of Jeffrey S. Schoen as President and Chief Executive Officer of the Company on November 8, 2013, the Board of Directors of the Company, upon recommendation of the Compensation Committee, granted Mr. Schoen an option to purchase 400,000 shares of the Company’s Common Stock (the “Option Grant”) subject to stockholder approval. The Option Grant has a purchase price of $30.25 per share and will vest, if at all, upon the price of the Company’s Common Stock reaching specified closing prices above the exercise price of the Option Grant, in accordance with the terms and conditions of the Nonqualified Stock Option Agreement effective as of November 8, 2013, subject to stockholder approval (the “Option Agreement”). The exercise price set forth in the Option Agreement of $30.25 was the fair market value of the Company’s Common Stock on November 8, 2013.

 

The Option Grant was not granted under the Company’s 2005 Stock Incentive Plan (the “Plan”). Under the rules of the NYSE MKT, such a grant made pursuant to a separate, stand-alone stock option agreement must be approved by the Company’s stockholders. As a result, the Option Grant is not exercisable unless and until the Company’s stockholders approve such option, and if the Option Grant is not approved by September 30, 2014 it will be void and of no effect.

 

 

 

PART I

 

INFORMATION REQUIRED IN
THE SECTION 10 (a) PROSPECTUS

 

Item 1. Plan Information.

 

Not required to be filed with this Registration Statement.

 

Item 2. Registrant Information and Employee Plan Annual Information.

 

Not required to be filed with this Registration Statement.

 

PART II

 

INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents, which have previously been filed by the Registrant with the Securities and Exchange Commission (“SEC”), are incorporated herein by reference as of their respective dates of filing, except for the portions thereof that are “furnished” rather than filed with the Commission:

 

(1) the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013.

 

(2) all other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), since the end of the fiscal year covered by the Company’s latest annual report referred to in (1) above.

 

(3) the description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A (No. 001-32563) filed under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on July 8, 2005, including any subsequent amendment or report filed for the purpose of amending such description.

 

(4) All documents subsequently filed by the Registrant 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 common stock offered hereunder has been sold or which deregisters all common stock then remaining unsold hereunder, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents, except for the documents, or portions thereof, that are “furnished” rather than filed with the SEC.

 

Item 4. Description of Securities.

 

The securities to be offered are registered under Section 12 of the Exchange Act.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

 

 

Item 6. Indemnification of Directors and Officers.

 

We are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties 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 person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she 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 or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are 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 or she 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 or her against the expenses which such officer or director has actually and reasonably incurred.

 

Section 6.10 of our Bylaws makes mandatory that the Company will indemnify our directors and officers to the fullest extent not prohibited by the Delaware General Corporation Law or any other law. We are not required to indemnify any director or officer in connection with a proceeding brought by such director or officer unless (i) such indemnification is expressly required by law; (ii) the proceeding was authorized by our board of directors; or (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under the Delaware General Corporation Law or any other applicable law. In addition, Section 6.10 of our Bylaws allows, but does not make mandatory, that the Company indemnify its employees and other agents as set forth in the Delaware General Corporation Law or any other applicable law.

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:

 

•

transaction from which the director derives an improper personal benefit;

 

•

act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

•

unlawful payment of dividends or redemption of shares; or

 

•

breach of a director’s duty of loyalty to the corporation or its stockholders.

 

Section 1 of Article Sixth of our Certificate of Incorporation includes such a provision stating that, to the fullest extent permitted by the Delaware General Corporation Law, our directors shall not be liable to the Company or our stockholders for monetary damages for breach of fiduciary duty as a director.

 

The indemnification provided for above provides for reimbursement of all losses of the indemnified party including, expenses, judgment, fines and amounts paid in settlement. The right to indemnification set forth above includes the right for us to pay the expenses (including attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition in certain circumstances.

 

 

 

In addition, the Delaware General Corporation Law and our Bylaws authorize us to purchase insurance for our directors and officers insuring them against certain risks as to which we may be unable lawfully to indemnify them. We have purchased insurance coverage for our directors and officers as well as insurance coverage to reimburse us for potential costs of corporate indemnification of our directors and officers, including liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”).

 

See Item 9 for information regarding our undertaking to submit to adjudication the issue of indemnification for violation of the securities laws.

 

Item 7. Exemption From Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

The exhibits to this registration statement are listed in the Exhibit Index that immediately precedes such exhibits and is incorporated herein by reference.

 

Item 9. Undertakings.

 

(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;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 and of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC 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 this Registration Statement or any material change to such information in this Registration Statement;

 

provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(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 SEC by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2) 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.

 

 

(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, each filing of the Registrant’s annual report pursuant to Section 13(a) or 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 this 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 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 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 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, 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 has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pryor, State of Oklahoma, on April 8, 2014.

 

	ORCHIDS PAPER PRODUCTS COMPANY
	By:	/s/ Keith R. Schroeder
		Keith R. Schroeder
		Chief Financial Officer

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

POWER OF ATTORNEY

 

Each person whose signature appears below hereby constitutes and appoints Jeffrey S. Schoen and Keith R. Schroeder, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution, to sign any amendments (including post-effective amendments) and supplements to this registration statement (and any additional registration statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933, as amended), and to file such amendments and any related documents with the Securities and Exchange Commission, and ratifies and confirms the actions that any such attorney-in-fact and agents, or their substitutes, may lawfully do or cause to be done under this power of attorney.

 

Signature	Title	Date
/s/ Steven R. Berlin	Chairman of the Board of Directors	April 8, 2014
Steven R. Berlin
/s/ Jeffrey S. Schoen	Chief Executive Officer and Director	April 8, 2014
Jeffrey S. Schoen	(Principal Executive Officer)
/s/ John G. Guttilla	Director	April 8, 2014
John G. Guttilla
/s/ Douglas E. Hailey	Director	April 8, 2014
Douglas E. Hailey
/s/ Elaine MacDonald	Director	April 8, 2014
Elaine MacDonald
/s/ Mark H. Ravich	Director	April 8, 2014
Mark H. Ravich
/s/ Keith R. Schroeder	Chief Financial Officer	April 8, 2014
Keith R. Schroeder	(Principal Financial and Accounting Officer)

 

 

 

EXHIBIT INDEX

 

Exhibit
Number		Description
3.1		As amended copy of Amended and Restated Certificate of Incorporation of the Registrant dated April 14, 2005, incorporated by reference to Exhibit 3.1 to the Registrant’s Registration Statement on Form S-1 (SEC Accession No. 0000950137-05-004608) filed with the SEC on April 19, 2005, which was amended by that Certificate of Amendment to Amended and Restated Certificate of incorporation of the Registrant dated June 19, 2007, incorporated by reference to Exhibit 3.1.1 to the Registrant’s Form 10-Q (SEC Accession No. 0000950137-07-012340) filed with the SEC on August 14, 2007; and which was further amended by that Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Registrant dated May 17, 2013, incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (SEC Accession No. 0001144204-13-030242) filed with the SEC on May 17, 2013.
3.2		As amended copy of Amended and Restated Bylaws of the Registrant effective April 14, 2005, incorporated by reference to Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1 (SEC Accession No. 0000950137-05-004608) filed with the SEC on April 19, 2005, which was amended by that Amendment to Amended and Restated Bylaws of the Registrant, incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (SEC Accession No. 0001144204-13-030242) filed with the SEC on May 17, 2013.
4.1		Specimen Stock Certificate, incorporated by reference to Exhibit 4.1 to the Registrant’s Amendment No. 2 to its Registration Statement on Form S-1/A (SEC Accession NO. 0000950137-05-007858) filed with the SEC on June 24, 2005.
5.1*		Opinion of Polsinelli PC.
10.1		Nonqualified Stock Option Agreement effective as of November 8, 2013, and subject to stockholder approval, between the Registrant and Jeffrey S. Schoen, incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K/A (SEC Accession No. 0001144204-14-004735) filed with the SEC on January 29, 2014.
23.1*		Consent of HoganTaylor LLP, Independent Registered Public Accounting Firm.
23.3*		Consent of Polsinelli PC (contained in Exhibit 5.1 to this Registration Statement).
24.1		Power of Attorney (included in signature page to this Registration Statement).

 

*Filed herewith