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Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
THE HARPER GROUP, INC.
(Exact name of issuer as specified in its charter)
Delaware 94-1740320
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
260 Townsend Street, San Francisco, California 94107-0933
(Address of principal executive offices) (Zip Code)
THE HARPER GROUP, INC. 1994 OMNIBUS EQUITY INCENTIVE PLAN
(Full title of the plan)
Peter Gibert
The Harper Group, Inc.
260 Townsend Street, San Francisco, California 94107-0933
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(415) 978-0600
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe
400 Sansome Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
============================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share* Price* Fee*
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Common Stock, 750,000 shares $15.625 $11,718,750 $4,040.98
and Options to
Purchase Common
Stock
============================================================================
* Estimated solely for the purpose of calculating the registration
fee on the basis of $15.625 per share, the last reported trade
price for the Common Stock on May 4, 1994 as reported by NASDAQ.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
registration statement: (i) the Annual Report on Form 10-K for the
fiscal year ended December 31, 1993, of The Harper Group, Inc. (the
"Company") filed on or about March 30, 1994; (ii) all reports filed
by the Company pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the
date of such Form 10-K; and (iii) the description of the Company's
common stock set forth in the Company's Registration Statement on
Form 8-A relating thereto, including any amendment or report filed
for the purpose of updating such description. All documents filed
by the Company after the date of this registration statement
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment (that
indicates all securities offered have been sold or deregisters all
securities then remaining unsold), shall be deemed to be
incorporated by reference in this registration statement and to be
a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article SIXTH of the Company's Certificate of
Incorporation provides that directors of the Company shall not be
personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, to the fullest
extent permitted by the General Corporation Law of the State of
Delaware (the "DGCL").
Article V of the Company's Bylaws provides for
indemnification of officers and directors to the full extent and in
the manner permitted by Delaware law.
Section 145 of the DGCL makes provision for such
indemnification in terms sufficiently broad to cover officers and
directors under certain circumstances for liabilities arising under
the Securities Act of 1933.
The Company has entered into indemnification agreements
with each director and officer which provide indemnification under
certain circumstances.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 The Harper Group, Inc. 1994 Omnibus Equity Incentive Plan
(incorporated by reference to Exhibit 10.11 to Form 10-K for
the fiscal year ended December 31, 1993).
4.2 Form of Nonqualified Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in
Exhibit 5.1.
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;
(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 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.
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(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 (and, where applicable, each filing of the 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 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
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 City of San
Francisco, State of California on the 39th day of April, 1994.
The Harper Group, Inc.
(Registrant)
/s/ Peter Gibert
Peter Gibert
President, Chairman of
the Board and Chief
Executive Officer
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 dated indicated.
Signature Title Date
Principal Executive Officer:
/s/ Peter Gibert
Peter Gibert President, April 30, 1994
Chairman of the
Board and Chief
Executive Officer
Principal Financial Officer:
/s/ Michael Cromar
Michael Cromar Vice President and April 30, 1994
Chief Financial
Officer
Principal Accounting Officer:
/s/ Michael French
Michael French Vice President and April 30, 1994
Controller
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Directors:
/s/ Peter Gibert
Peter Gibert Director April 30, 1994
/s/ John H. Robinson
John H. Robinson Director April 30, 1994
/s/ Ray C. Robinson
Ray C. Robinson Director April 30, 1994
/s/ Wesley J. Fastif
Wesley J. Fastiff Director April 30, 1994
Frank J. Wezniak Director April __, 1994
John M. Kaiser Director April __, 1994
Marvin L. Manheim Director April __, 1994
A majority of the members of the Board of Directors.
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EXHIBIT INDEX
Page
Number
4.1 The Harper Group, Inc. 1994 Omnibus Equity
Incentive Plan (incorporated by reference to
Exhibit 10.11 to Form 10-K for the fiscal year
ended December 31, 1993).
4.2 Form of Nonqualified Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche.
23.2 Consent of Orrick, Herrington & Sutcliffe is
included in Exhibit 5.1.
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THE HARPER GROUP, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
1. Grant of Option. The Harper Group, Inc. (the
"Company") hereby grants to _____________ (the "Employee") under
The Harper Group, Inc. 1994 Omnibus Equity Incentive Plan (the
"Plan"), as a separate incentive in connection with his or her
employment and not in lieu of any salary or other compensation
for his or her services, a nonqualified stock option to purchase,
on the terms and conditions set forth in this Agreement and the
Plan, all or any part of an aggregate of __________ shares of
authorized shares of the Common Stock, at the purchase price set
forth in paragraph 2 of this Agreement. The option granted
hereby is not intended to be an Incentive Stock Option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended.
2. Exercise Price. The purchase price per share (the
"Option Price") shall be $__________, which is the fair market
value per share of the Common Stock on __________, the effective
date of this Agreement. The Option Price shall be payable in the
legal tender of the United States or, in the discretion of the
Committee, in shares of the Common stock of the Company or in a
combination of such legal tender and such shares.
3. Number of Shares. The number and class of shares
specified in paragraph 1 above, and/or the Option Price, are
subject to appropriate adjustment in the event of changes in the
capital stock of the Company by reason of stock dividends, split-
ups or combinations of shares, reclassifications, mergers,
consolidations, reorganizations or liquidations. Subject to any
required action of the stockholders of the Company, if the
Company shall be the surviving corporation in any merger or
consolidation, the option granted hereunder (to the extent that
it is still outstanding) shall pertain to and apply to the
securities to which a holder of the same number of shares of
Common Stock that are then subject to the option would have been
entitled. To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be
made by the Committee, whose determination in that respect shall
be final, binding and conclusive.
4. Commencement of Exercisability. Except as
otherwise provided in this Agreement, the right to exercise the
option awarded by this Agreement shall accrue (a) as to ____% of
the shares subject to such option on the day after the ________
anniversary of the date of this Agreement, (b) as to an
additional ____% on the day after the ______ anniversary of this
Agreement, and (c) as to the remaining ____% on the day after the
_______ anniversary of this Agreement.
5. Termination of Option. In the event of
termination of the Employee's employment with the Company or a
Subsidiary for any reason, the Employee may, within three (3)
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months after the date of such termination or within _______ (___)
years from the date of this Agreement, whichever shall first
occur, exercise the option to the extent the right to exercise
the option had accrued as of the date of such termination. In
the event the Employee shall die within such three (3) month
period, the option may be exercised by the Employee's transferee,
as hereinafter provided, to the same extent that the right to
exercise the option had accrued immediately prior to the
Employee's death, for a period of three (3) months after the date
of the Employee's death.
6. Persons Eligible to Exercise. The option shall be
exercisable during the Employee's lifetime only by the Employee.
The option shall be non-transferable by the Employee other than
by a beneficiary designation made in a form and manner acceptable
to the Committee, or by will or the applicable laws of descent
and distribution.
7. After the Death of Employee. To the extent
exercisable after the Employee's death, the option shall be
exercised only by the Employee's designated beneficiary or
beneficiaries, or if no beneficiary survives the Employee, by the
person or persons entitled to the option under the Employee's
will, or if the Employee shall fail to make testamentary
disposition of the option, his or her legal representative. Any
transferee exercising the option must furnish the Company
(a) written notice of his or her status as transferee,
(b) evidence satisfactory to the Company to establish the
validity of the transfer of the option and compliance with any
laws or regulations pertaining to said transfer, and (c) written
acceptance of the terms and conditions of the option as
prescribed in this Agreement.
8. Exercise of Option. The option may be exercised
by the person then entitled to do so as to any shares which may
then be purchased (a) by giving written notice of exercise to the
Company, specifying the number of full shares to be purchased and
accompanied by full payment of the purchase price thereof (and
the amount of any income tax the Company is required by law to
withhold by reason of such exercise), and (b) by giving
satisfactory assurances in writing if requested by the Company,
signed by the person exercising the option, that the shares to be
purchased upon such exercise are being purchased for investment
and not with a view to the distribution thereof.
9. Suspension of Exercisability. If at any time the
Company shall determine, in its discretion, that the listing,
registration or qualification of the shares covered by the option
upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory
authority, is necessary or desirable as a condition of the
purchase of shares hereunder, the option may not be exercised, in
whole or in part, unless and until such listing, registration,
qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.
The Company shall make reasonable efforts to meet the
requirements of any such state or federal law or securities
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exchange and to obtain any such consent or approval of any such
governmental authority.
10. No Rights of Stockholder. Neither the Employee
nor any person claiming under or through said Employee shall be
or have any of the rights or privileges of a stockholder of the
Company in respect of any of the shares issuable upon the
exercise of the option, unless and until certificates
representing such shares shall have been issued, recorded on the
records of the Company or its transfer agents or registrars, and
delivered to Employee.
11. Option has No Effect on Employment. The terms of
Employee's employment shall be determined from time to time by
the Company, or the Subsidiary employing the Employee, as the
case may be, and the Company, or the Subsidiary employing the
Employee, as the case may be, shall have the right, which is
hereby expressly reserved, to terminate or change the terms of
the employment of the Employee at any time for any reason
whatsoever, with or without good cause.
12. Addresses for Notices. Any notice to be given to
the Company under the terms of this Agreement shall be addressed
to the Company, in care of its Secretary, at The Harper Group,
Inc., 260 Townsend Street, San Francisco, CA 94107-0933, or at
such other address as the Company may hereafter designate in
writing. Any notice to be given to the Employee shall be
addressed to the Employee at the address set forth beneath the
Employee's signature hereto, or at such other address as the
Employee may hereafter designate in writing. Any such notice
shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope, addressed as aforesaid, registered or
certified and deposited, postage and registry fee prepaid, in a
United States post office.
13. Non-Transferability of Option. Except as
otherwise herein provided, the option herein granted and the
rights and privileges conferred hereby shall not be transferred,
assigned, pledged or hypothecated in any way (whether by
operation of law or otherwise) and shall not be subject to sale
under execution, attachment or similar process. Upon any attempt
to transfer, assign, pledge, hypothecate or otherwise dispose of
said option, or of any right or privilege conferred hereby,
contrary to the provisions hereof, or upon any attempted sale
under any execution, attachment or similar process upon the
rights and privileges conferred hereby, said option and the
rights and privileges conferred hereby shall immediately become
null and void.
14. Maximum Term of Option. Notwithstanding any
other provision of this Agreement, this option is not exercisable
after the expiration of ________ (___) years and three (3) months
from the date of this Agreement.
15. Binding Agreement. Subject to the limitation on
the transferability of the option contained herein, this
Agreement shall be binding upon and inure to the benefit of the
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heirs, legatees, legal representatives, successors and assigns of
the parties hereto.
16. Plan Governs. This Agreement is subject to all
terms and provisions of the Plan. In the event of a conflict
between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan shall govern.
Terms used in this Agreement that are not defined in this
Agreement shall have the meaning set forth in the Plan.
17. Committee Authority. The Committee shall have
the power to interpret the Plan and this Agreement and to adopt
such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret or
revoke any such rules. All actions taken and all interpretations
and determinations made by the Committee in good faith shall be
final and binding upon Employee, the Company and all other
interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation
made in good faith with respect to the Plan or this Agreement.
18. Captions. Captions provided herein are for
convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
19. Agreement Severable. In the event that any
provision in this Agreement shall be held invalid or
unenforceable, such provision shall be severable from, and such
invalidity or unenforceability shall not be construed to have any
effect on, the remaining provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this
Agreement, in duplicate, effective as of the day and year
specified in paragraph 2 of this Agreement.
THE HARPER GROUP, INC.
By_______________________________________
Employee Signature
___________________________________
___________________________________
___________________________________
Address
___________________________________
Social Security Number
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Exhibit 5.1
Opinion of Orrick, Herrington & Sutcliffe
May 9, 1994
The Harper Group, Inc.
260 Townsend Street
San Francisco, CA 94107-0933
Re: Registration Statement on Form S-8
Dear Sir:
At your request, we are rendering this opinion in
connection with the proposed issuance pursuant to The Harper
Group, Inc. 1994 Omnibus Equity Incentive Plan (the "Plan"), of
up to 750,000 shares of common stock ("Common Stock"), of The
Harper Group, Inc., a Delaware corporation (the "Company").
We have examined instruments, documents, and records
which we deemed relevant and necessary for the basis of our
opinion hereinafter expressed. In such examination, we have
assumed the following: (a) the authenticity of original
documents and the genuineness of all signatures; (b) the
conformity to the originals of all documents submitted to us as
copies; and (c) the truth, accuracy, and completeness of the
information, representations, and warranties contained in the
records, documents, instruments, and certificates we have
reviewed.
Based on such examination, we are of the opinion that
the 750,000 shares of Common Stock to be issued by the Company
pursuant to the Plan are validly authorized shares of Common
Stock, and, when issued in accordance with the provisions of the
Plan, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to this Registration Statement on Form S-8 and to the use
of our name wherever it appears in said Registration Statement.
In giving such consent, we do not consider that we are "experts"
within the meaning of such term as used in the Securities Act of
1933, as amended, or the rules and regulations of the Securities
<PAGE>
The Harper Group
May 9, 1994
page 2
and Exchange Commission issued thereunder with respect to any
part of the Registration Statement, including this opinion, as an
exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe
ORRICK, HERRINGTON & SUTCLIFFE
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Exhibit 23.1
Consent of Deloitte & Touche
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of The Harper Group, Inc. on Form S-8 of our reports
dated March 17, 1994 appearing in and incorporated by reference
in The Harper Group, Inc. Annual Report on Form 10-K for the year
ended December 31, 1993.
/s/ Deloitte & Touche
San Francisco, California
April 11, 1994
