AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 2002
REGISTRATION NO.
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SEALED AIR CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE NO. 65-0654331
(State or Other Jurisdiction of Incorporation (I.R.S. Employer Identification Number)
or Organization)
PARK 80 EAST
SADDLE BROOK, NEW JERSEY 07663-5291
(Address and Zip Code of Principal Executive Offices)
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SEALED AIR CORPORATION
2002 STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
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H. KATHERINE WHITE, ESQ.
GENERAL COUNSEL AND SECRETARY
SEALED AIR CORPORATION
PARK 80 EAST
SADDLE BROOK, NEW JERSEY 07663-5291
(Name and Address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service: 201-791-7600
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CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE* OFFERING PRICE* REGISTRATION FEE
Common Stock, par value $0.10 per
share............................ 100,000 shares $0.10 per share $10,000 $0.92
* Maximum offering price per share based upon Section 8 of the Registrants'
2002 Stock Plan for Non-Employee Directors
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Corporation (File No. 1-12139) with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) Annual Report on Form 10-K of Sealed Air Corporation for the year
ended December 31, 2001;
(b) Quarterly Report on Form 10-Q of Sealed Air Corporation for the
quarter ended March 31, 2002; and
(c) the description of the Corporation's common stock contained in the
Corporation's Joint Proxy Statement/Prospectus filed as part of the
Corporation's Registration Statement on Form S-4, declared effective on
February 13, 1998.
All documents filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, subsequent to the date of this Registration
Statement and 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 herein by reference
and to be a part hereof from the respective date of filing of each such
document.
Item 4. DESCRIPTION OF SECURITIES.
The securities to be offered are registered under Section 12(b) of the 1934
Act.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered under the Sealed Air
Corporation 2002 Stock Plan for Non-Employee Directors has been passed upon for
the Registrant by H. Katherine White, General Counsel and Secretary of the
Registrant. As of the date of this Registration Statement, Ms. White was
employed by the Registrant and was the beneficial owner of approximately 34,071
shares of Common Stock of the Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"General Corporation Law") provides that: (1) under certain circumstances a
corporation may indemnify a director or officer made party to, or threatened to
be made party to, any civil, criminal, administrative or investigative action,
suit or proceeding (other than an action by or in the right of the corporation)
because such person is or was a director, officer, employee or agent of the
corporation, or because such person is or was so serving another enterprise at
the request of the corporation, against expenses, judgments, fines and amounts
paid in settlement reasonably incurred by such person in connection with such
action, suit or proceeding, if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to criminal cases, had no reasonable cause to
believe such person's conduct was unlawful; (2) under certain circumstances a
corporation may indemnify a director or officer made party to, or threatened to
be made party to, any action or suit by or in the right of the corporation for
judgment in favor of the corporation because such person is or was a director,
officer, employee or agent of the corporation, or because such person is or was
so serving another enterprise at the request of the corporation, against
expenses reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation; and (3) a director or officer shall be indemnified
by the corporation against expenses reasonably incurred by such person in
connection with and to the extent that such person has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
the preceding clauses, or in defense of any claim, issue or matter therein.
Under Article ELEVENTH of the Registrant's Amended and Restated Certificate
of Incorporation and Article 8 of the Registrant's By-Laws, indemnification of
directors and officers is provided for to the fullest extent permitted under the
General Corporation Law. Article TWELFTH of the Registrant's Amended and
Restated Certificate of Incorporation eliminates the liability of directors for
monetary damages for breach of fiduciary duty as directors, except for liability
(1) for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the General Corporation Law, or (4) for any transaction from which the director
derived an improper personal benefit. The General Corporation Law, the
Registrant's Amended and Restated Certificate of Incorporation and the By-Laws
of the Registrant permit the purchase by the Registrant of insurance for
indemnification of directors and officers. The Registrant currently maintains
directors and officers liability insurance.
The foregoing summary of Section 145 of the General Corporation Law,
Articles ELEVENTH and TWELFTH of the Amended and Restated Certificate of
Incorporation of the Registrant and Article 8 of the By-Laws of the Registrant
is qualified in its entirety by reference to the relevant provisions of
Section 145, the relevant provisions of the Registrant's Unofficial Composite
Amended and Restated Certificate of Incorporation, which are incorporated herein
by reference to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 2001, File No. 1-12139, and the relevant provisions
of the Registrant's By-Laws, which are incorporated herein by reference to
Exhibit 3.3 to the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000, File No. 1-12139.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Unofficial Composite Amended and Restated Certificate of
Incorporation of the Corporation as currently in effect.
[Exhibit 3.1 to the Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001, File
No. 1-12139, is incorporated herein by reference.]
4.2 Amended and Restated By-Laws of the Corporation as currently
in effect. [Exhibit 3.3 to the Corporation's Annual Report
on Form 10-K for the year ended December 31, 2000, File
No. 1-12139, is incorporated herein by reference.]
4.3 Sealed Air Corporation 2002 Stock Plan for Non-Employee
Directors of the Corporation. [Annex A of the
Corporation's Proxy Statement for the annual meeting held
on May 17, 2002, File No. 1-12139, is incorporated herein
by reference.]
4.4 Form of 2002 Plan Stock Purchase Agreement
5 Opinion of counsel as to legality of securities being
registered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel [Contained in opinion filed as Exhibit 5
to this Registration Statement, and incorporated herein by
reference.]
24 Powers of Attorney [Contained in Signature Pages of this
Registration Statement, and incorporated herein by
reference.]
Item 9. UNDERTAKINGS.
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 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
registration statement); and (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 (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 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
Securities and Exchange 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; and
(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.
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.
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.
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 Township of Saddle Brook, State of New Jersey on
May 24, 2002.
SEALED AIR CORPORATION
(Registrant)
By: /s/ William V. Hickey
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William V. Hickey
President and Chief Executive
Officer
Each person whose signature appears below hereby severally constitutes and
appoints H. Katherine White, Jeffrey S. Warren and Sean E. Dempsey, and each of
them singly, such person's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8, 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 full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming that said attorneys-in-fact and agents or their
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 and on the dates indicated.
SIGNATURE DATE
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/s/ William V. Hickey May 24, 2002
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William V. Hickey
President, Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ David H. Kelsey May 24, 2002
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David H. Kelsey
Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ Jeffrey S. Warren May 24, 2002
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Jeffrey S. Warren
Controller
(Principal Accounting Officer)
/s/ Hank Brown May 24, 2002
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Hank Brown
Director
/s/ Lawrence R. Codey May 24, 2002
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Lawrence R. Codey
Director
SIGNATURE DATE
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/s/ T. J. Dermot Dunphy May 24, 2002
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T. J. Dermot Dunphy
Director
/s/ Charles F. Farrell, Jr. May 24, 2002
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Charles F. Farrell, Jr.
Director
/s/ Shirley Ann Jackson May 24, 2002
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Shirley Ann Jackson
Director
May 24, 2002
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Kenneth P. Manning
Director
May 24, 2002
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William J. Marino
Director
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Unofficial Composite Amended and Restated Certificate of
Incorporation of the Corporation as currently in effect.
[Exhibit 3.1 to the Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001, File
No. 1-12139, is incorporated herein by reference.]
4.2 Amended and Restated By-Laws of the Corporation as currently
in effect. [Exhibit 3.3 to the Corporation's Annual Report
on Form 10-K for the year ended December 31, 2000, File
No. 1-12139, is incorporated herein by reference.]
4.3 Sealed Air Corporation 2002 Stock Plan for Non-Employee
Directors of the Corporation. [Annex A of the
Corporation's Proxy Statement for the annual meeting held
on May 17, 2002, File No. 1-12139, is incorporated herein
by reference.]
4.4 Form of 2002 Plan Stock Purchase Agreement
5 Opinion of counsel as to legality of securities being
registered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel [Contained in opinion filed as Exhibit 5
to this Registration Statement, and incorporated herein by
reference.]
24 Powers of Attorney [Contained in Signature Pages of this
Registration Statement, and incorporated herein by
reference.]
EXHIBIT 4.4
FORM OF 2002 PLAN STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of between SEALED AIR CORPORATION, a Delaware
corporation (the "Corporation"), and (the "Director").
The Sealed Air Corporation 2002 Stock Plan for Non-Employee Directors (the
"Plan") is designed to enhance the ability of the Corporation to attract, retain
and motivate Non-Employee Directors (as defined in Section 3 of the Plan) of
exceptional ability and to promote the common interest of directors and
stockholders in enhancing the value of the Corporation's common stock, par value
$0.10 per share ("Common Stock"). The Director is now a Non-Employee Director of
the Corporation and is eligible to receive Retainers (as defined in Section 4 of
the Plan) payable all or in part in shares of Common Stock under the Plan.
NOW, THEREFORE, the Corporation and the Director mutually agree as follows:
SECTION 1. PURCHASE AND SALE OF STOCK
Subject to the terms and conditions hereinafter set forth, the Corporation
hereby sells to the Director and the Director purchases from the Corporation
shares of Common Stock for a purchase price of $0.10 per share (the "Issue
Price"), receipt of which the Corporation hereby acknowledges. The Corporation
will deliver to the Director a certificate representing such shares of Common
Stock within a reasonable time after execution of this Agreement.
SECTION 2. TERMS AND CONDITIONS OF THE SEALED AIR CORPORATION 2002 STOCK
PLAN FOR NON-EMPLOYEE DIRECTORS
The Director agrees that all shares of Common Stock issued pursuant to this
Agreement shall be held in accordance with the terms and conditions of the Plan.
The authority of the Corporation to enter into this Agreement and to issue
shares of Common Stock pursuant hereto is derived from the Plan. If any terms or
conditions of this Agreement conflict with any terms or conditions of the Plan,
the terms and conditions of the Plan shall control.
SECTION 3. RESTRICTION ON TRANSFER
Except as permitted in Section 6 of the Plan, no shares of Common Stock
issued pursuant to this Agreement, or any interest therein, shall be sold,
transferred, pledged, encumbered or otherwise disposed of (including without
limitation by way of gift or donation) by the Director so long as the Director
shall remain a director of the Corporation, except that such restriction may
expire earlier as provided by Section 9 of the Plan.
SECTION 4. UNDERTAKINGS OF DIRECTOR
The Director represents and agrees that he or she will comply with the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act"), with respect
to shares issued pursuant to this Agreement, and he or she will indemnify the
Corporation for any costs, liabilities and expenses (including reasonable
attorneys' fees) that it may sustain by reason of any violation of the
Securities Act or the Securities Exchange Act caused by any act or omission on
his or her part with respect to such shares.
SECTION 5. GOVERNMENT AND OTHER REGULATIONS AND RESTRICTIONS; LEGENDS
The obligation of the Corporation to issue Common Stock upon execution of
this Agreement shall be subject to all applicable laws, rules and regulations
and to such approvals by governmental agencies as may be required. The Director
consents to the imprinting of the following legend on any certificate
or certificates evidencing such shares and to the entry of a stop-transfer order
with respect thereto in the records of the Corporation's transfer agent:
The shares represented by this certificate may be sold, transferred,
pledged, encumbered or otherwise disposed of only if registered under the
Securities Act of 1933, as amended, or if in the opinion of counsel to
Sealed Air Corporation, an exemption from registration is available.
The Director also acknowledges that, so long as the restrictions on transfer
imposed by the Plan remain in effect, all shares issued under the Plan shall be
represented by certificates that will be imprinted with the legend set forth in
Section 12 of the Plan and shall have in effect a stop-transfer order with
respect thereto.
SECTION 6. NOTICES
Any notice which either party hereto may be required or permitted to give to
the other shall be in writing and, except as otherwise required herein, may be
delivered personally or by mail to the Corporation at Park 80 East, Saddle
Brook, New Jersey 07663, to the attention of the Secretary of the Corporation,
or to the Director at the address set forth below or at such other address as
either party may designate by notice to the other.
SECTION 7. APPLICABLE LAW
This Agreement shall be governed and construed in accordance with the laws
of the State of Delaware.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed pursuant to due authorization, all as of the day and year first above
written.
SEALED AIR CORPORATION
By
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President
[Corporate Seal]
Attest:
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Secretary
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Director
Address of Director:
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2
EXHIBIT 5
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07663
May 24, 2002
Sealed Air Corporation
Park 80 East
Saddle Brook, N.J. 07663
Dear Sirs:
I am the General Counsel and Secretary of Sealed Air Corporation, a Delaware
corporation (the "Corporation"), and as such have represented the Corporation in
connection with a Registration Statement on Form S-8 (the "Registration
Statement") of the Corporation providing for the registration under the
Securities Act of 1933, as amended, of 100,000 shares (the "Shares") of the
Corporation's Common Stock, par value $0.10 per share (the "Common Stock"). The
Shares are authorized but unissued shares of Common Stock that are available for
awards to be made under the Sealed Air Corporation 2002 Stock Plan for
Non-Employee Directors (the "Plan"). I have been advised that the authorization
of the Shares for issuance under the Plan was approved by the Board of Directors
on February 7, 2002 and by the stockholders of the Corporation on May 17, 2002.
As counsel for the Corporation, in addition to participating in the
preparation of the Registration Statement, I have reviewed the resolutions
adopted by the Board of Directors and stockholders of the Corporation that
authorized the adoption of the Plan and the issuance of the Shares. I have also
reviewed such corporate records, documents, instruments and certificates and
have made such other inquiries as I have considered necessary in order to
furnish a basis for rendering this opinion.
Based on the foregoing, I am of opinion that:
1. The Corporation is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. The Shares are and, when sold pursuant to the Registration Statement
will be, legally issued, fully paid and nonassessable shares of Common Stock
of the Corporation.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5 to the Registration Statement and to the
reference to me in Item 5 of the Registration Statement.
Very truly yours,
/s/ H. Katherine White
H. Katherine White
General Counsel and Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Sealed Air Corporation:
We consent to incorporation by reference in this Registration Statement on
Form S-8 of Sealed Air Corporation of our reports dated January 24, 2002,
relating to the consolidated balance sheets of Sealed Air Corporation and
subsidiaries as of December 31, 2001 and 2000, and the related consolidated
statements of earnings, equity, cash flows, and comprehensive income for each of
the years in the three-year period ended December 31, 2001, and the related
schedule, which reports appear in or are incorporated by reference in Sealed Air
Corporation's Annual Report on Form 10-K for the year ended December 31, 2001.
/s/ KPMG LLP
KPMG LLP
Short Hills, New Jersey
May 24, 2002
