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As filed with the Commission on March 15, 2000 File No. 333-[ ]
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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XTRA CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 06-0954158
----------- ------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
XTRA Corporation
200 Nyala Farms Road
Westport, Connecticut 06880
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(Address of principal executive offices, including zip code)
XTRA CORPORATION
1997 STOCK INCENTIVE PLAN
-------------------------
(Full title of the plans)
Michael J. Soja
Vice President, Finance, and Chief Financial Officer
XTRA Corporation
200 Nyala Farms Road
Westport, CT 06880
(203) 221-1005
------------------------------------
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum registration
to be registered offering aggregate fee/(2)/
registered price per offering
share/(1)/ price/(1)/
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 650,000/(3)/ $40.73 $26,477,622.50 $6,990.10
par value, $.50
- -------------------------------------------------------------------------------
</TABLE>
/(1)/ Represents the weighted average price of shares registered hereunder
determined as follows:
The offering price for shares subject to options on the date hereof is the
actual exercise price of such options. Of the 650,000 shares of Common
Stock, par value $.50 per share, to be registered hereunder, 480,500 shares
are subject to options at an average exercise price of $41.92 per share. The
offering price of $37.375 per share for the remaining 169,500 shares not
subject to options on the date hereof has been estimated solely for the
purpose of determining the registration fee pursuant to Rule 457(h) on the
basis of the average of the high and low prices for the Common Stock of XTRA
Corporation reported on the New York Stock Exchange on March 9, 2000.
Exhibit Index on Page 9 Page 1 of 11 Pages
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/(2)/ Registration fee consists of (a) $5,317.64 payable in respect of 480,500
shares subject to options at an average exercise price of $41.92 per share
on the date hereof and (b) $1,672.46 payable in respect of 169,500 shares
not yet subject to options on the date hereof, calculated as described in
footnote 1 above.
/(3)/ Plus such indeterminate number of additional shares of Common Stock as may
be required in the event of a stock dividend, reverse stock split or
combination of shares, recapitalization or other change in the Company's
capital stock.
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Item 3. Incorporation of Documents by Reference.
---------------------------------------
XTRA Corporation (the "Registrant" or the "Company") hereby incorporates
the following documents herein by reference:
(a) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999.
(b) The Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999, filed pursuant to the Securities Exchange Act of 1934 (the
"1934 Act").
(c) The Registrant's Current Reports on Form 8-K dated November 15, 1999
and February 2, 2000.
(d) The description of the Company's Common Stock, $.50 par value,
contained in the Company's Registration Statement on Form 10 in respect of the
Company's Common Stock, filed pursuant to Section 12 of the Securities Exchange
Act of 1934.
All documents subsequently filed by the Registrant pursuant to Section 13(a),
Section 13(c), Section 14 and Section 15 of the Exchange Act prior to the filing
of a post-effective amendment to this registration statement that indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated herein by reference from the date
of filing of such documents.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The General Corporation Law of the State of Delaware, in which XTRA
Corporation is incorporated, gives a corporation power to indemnify any of its
officers or directors against certain expenses, judgments, fines, and amounts
paid in settlement in connection with certain actions, suits or proceedings,
provided generally, that such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In addition, the statutes
of Delaware contain provisions to the general effect that any director shall in
the performance of his duties be fully protected in relying in good faith upon
the books of account or records of the corporation or statements prepared by any
official of the corporation.
The Certificate of Incorporation of XTRA Corporation includes the following
provision:
This corporation shall, to the maximum extent permitted from time to time
under the law of the State of Delaware, indemnify and upon request shall advance
expenses to any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action, suit, proceeding or claim,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was or has agreed to be a director or officer of this corporation
or while a director or officer is or was serving at the request of this
corporation as a director, officer, partner, trustee, employee or agent of any
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, against expenses (including
attorney's fees and expenses), judgments, fines, penalties and amounts paid in
settlement incurred in connection with the investigation, preparation to defend
or defense of such action, suit, proceeding, or claim; provided, however,
-----------------
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that the foregoing shall not require this corporation to indemnify or advance
expenses to any person in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. Such indemnification
shall not be exclusive of other indemnification rights arising under any by-law,
agreement, vote of directors or stockholders or otherwise and shall inure to the
benefit of the heirs and legal representatives of such person. Any repeal or
modification of the foregoing provisions of this Article 9 shall not adversely
affect any right or protection of a director or officer of this corporation
existing at the time of such repeal or modification.
In addition the Company maintains a directors' and officers' liability
insurance policy.
The Company has entered into Indemnification Agreements, the form of which
was approved by the stockholders of the Company, with certain officers of the
Company and its subsidiaries, including XTRA, Inc. The Indemnification
Agreements provide a number of procedures, presumptions and remedies used in the
determination of the right of the officer to indemnification. These procedures,
presumptions and remedies substantially broaden the indemnity rights of officers
beyond that provided by Article 9 of the Company's Certificate of Incorporation
described above. If an action against an indemnified party is dismissed with or
without prejudice, the defense is deemed to have been successful and the
indemnification is required to be made. The Indemnification Agreements provide
that expenses must be paid within twenty days of any request and that a
determination of entitlement must be made within sixty days of the
indemnification request (otherwise a determination in favor of the indemnified
party is deemed to have been made). If there is a change in control of the
Company (as defined in the Indemnification Agreement), the indemnified party is
presumed to be entitled to indemnification (although the Company may overcome
this presumption), the indemnified party may require that independent counsel
make the determination of entitlement and may choose such course, subject to
objection by the Company on limited grounds. If a determination of entitlement
is made, the Company is bound, but if the indemnified party has previously been
denied indemnification pursuant to the terms of the Indemnification Agreement,
he or she is entitled to seek a de novo determination from a court. The Company
is precluded from challenging the validity of the procedures and presumptions
contained in the Indemnification Agreement in any court proceeding. The
Indemnification Agreement covers proceedings brought on or after the date of the
execution of the particular Indemnification Agreement, including proceedings
based on acts prior to the date of the particular agreement.
4
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Item 8. Exhibits.
--------
Exhibit Page
Number Number
- ------ ------
5 Opinion of Ropes & Gray 10
23.1 Consent of Independent Public Accountants 11
23.2 Consent of counsel (included in Exhibit 5)
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 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; 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 (a)(1)(i) and (ii) shall not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed 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 herein, 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 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
5
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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.
6
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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 authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Westport and the State of Connecticut, on this 15th
day of March, 2000.
XTRA CORPORATION
By: /s/ Michael J. Soja
------------------------------------
MICHAEL J. SOJA,
Vice President, Finance, and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
TITLE: DATE:
/s/ Lewis Rubin March 15, 2000
- -------------------------------
LEWIS RUBIN, President,
Chief Executive Officer, and Director
(Principal Executive Officer)
/s/ Michael J. Soja March 15, 2000
- -------------------------------
MICHAEL J. SOJA, Vice President,
Finance and Chief Financial Officer
(Principal Financial Officer)
/s/ Thomas S. McHugh March 15, 2000
- ---- --------------------------
THOMAS S. McHUGH, Controller
(Principal Accounting Officer)
7
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TITLE: DATE:
/s/ Michael D. Bills March 15, 2000
- ---------------------------------
MICHAEL D. BILLS, Director
/s/ H. William Brown March 15, 2000
- ----------------------------------
H. WILLIAM BROWN, Director
/s/ Michael N. Christodolou March 15, 2000
- ----------------------------------
MICHAEL N. CHRISTODOLOU, Director
- ----------------------------------
ROBERT B. GOERGEN, Director
/s/ Martin L. Solomon March 15, 2000
- ----------------------------------
MARTIN L. SOLOMON, Director
8
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EXHIBIT INDEX
EXHIBIT PAGE
- ------- ----
5. Opinion of Ropes & Gray 10
23.1 Consent of Independent Public Accountants 11
23.2 Consent of counsel (included in Exhibit 5)
9
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EXHIBIT 5
March 15, 2000
XTRA Corporation
200 Nyala Farms Road
Westport, CT 06880
Re: XTRA Corporation
----------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, for the
registration of 650,000 shares of Common Stock, $0.50 par value (the "Shares"),
of XTRA Corporation, a Delaware corporation (the "Company").
We have acted as counsel for the Company and are familiar with the action
taken by the Company in connection with the Company's 1997 Stock Incentive Plan
(the "Plan"). For purposes of this opinion, we have examined the Plan and such
other documents, records, certificates, and other instruments as we have deemed
necessary.
We express no opinion as to the applicability of compliance with or effect
of federal law or the law of any jurisdiction other than The Commonwealth of
Massachusetts and the General Corporation Law of the State of Delaware.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, as and when the Shares are issued and sold and
consideration is received therefor by the Company in accordance with the terms
of the Plan, the Shares will be validly issued, fully paid, and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement. It is understood that this opinion is to be used only in
connection with the offer and sale of the Shares while the Registration
Statement is in effect.
Very truly yours,
/s/ Ropes & Gray
----------------
Ropes & Gray
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated November 5, 1999
included in XTRA Corporation's Form 10-K for the year ended September 30, 1999
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
---------------------------------
ARTHUR ANDERSEN LLP
St. Louis, Missouri
March 14, 2000
