<PAGE> 1
As filed with the Securities and Exchange Commission on May 20,
1996
Registration No. 333-
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*
- --------------------------------------------------------------
Common Stock, 1,250,000 shares $20.75 $25,937,500 $8944.00
and Options to
Purchase Common
Stock
==============================================================
* Estimated solely for the purpose of calculating the
registration fee and based on the closing price for the Common
Stock on May 14, 1996 on the NASDAQ National Market System.
<PAGE> 2
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 Harper Group, Inc. (the "Company") for the fiscal year ended
December 31, 1995 filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); (ii) all reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by 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.
<PAGE> 3
The Company has entered into indemnification agreements with each
director and officer which provide indemnification under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 The Harper Group, Inc. 1994 Omnibus Equity Incentive Plan,
as amended (incorporated by reference to Exhibit 10.11 to the
registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, Commission File No. 0-8664 and Exhibit 10.11.1
to the registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 0-8664).
4.2 Form of Nonqualified Stock Option Agreement (incorporated by
reference to Exhibit 4.2 to the registrant's Registration
Statement on Form S-8, Commission File No. 33-53557).
4.3 Form of Restricted Stock Award Agreement.
4.4 Form of Incentive Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche LLP.
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;
<PAGE> 4
(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.
(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 tothe
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,
theregistrant 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
<PAGE> 5
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 17th of May, 1996.
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, May 17, 1996
Chairman of the
Board and Chief
Executive Officer
Principal Financial Officer and
Accounting Officer:
/s/ Robert J. Diaz
Robert J. Diaz Senior Vice May 17, 1996
President, Chief
Financial Officer
and Treasurer
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Directors:
/s/ Peter Gibert
Peter Gibert Director May 17, 1996
/s/ Edwin J. Holman
Edwin J. Holman Director May 17, 1996
/s/ John M. Kaiser
John M. Kaiser Director May 17, 1996
/s/ Ray C. Robinson, Jr.
Ray C. Robinson, Jr. Director May 17, 1996
/s/ Wesley J. Fastiff
Wesley J. Fastiff Director May 17, 1996
/s/ Frank J. Wezniak
Frank J. Wezniak Director May 17, 1996
A majority of the members of the Board of Directors.
<PAGE> 8
EXHIBIT INDEX
4.1 The Harper Group, Inc. 1994 Omnibus Equity Incentive Plan,
as amended (incorporated by reference to Exhibit 10.11 to the
registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, Commission File No. 0-8664 and Exhibit 10.11.1
to the registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, Commission File No. 0-8664).
4.2 Form of Nonqualified Stock Option Agreement (incorporated
by reference to Exhibit 4.2 to the registrant's Registration
Statement on Form S-8, Commission File No. 33-53557).
4.3 Form of Restricted Stock Award Agreement.
4.4 Form of Incentive Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in
Exhibit 5.1.
<PAGE> 9
Exhibit 4.3
THE HARPER GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, made as of this ____ day of __________,
199_, between The Harper Group, Inc., a Delaware corporation (the
"Company") and __________________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company has adopted The Harper Group, Inc. 1994
Omnibus Equity Incentive Plan (the "Plan"), providing for the
granting of restricted shares of Common Stock of the Company
("Restricted Stock") to Employees of the Company and its
Subsidiaries; and
WHEREAS, the Human Resources and Compensation Committee (the
"Committee"), which is responsible for the administration of the
Plan, has authorized the granting of shares of Restricted Stock
to the Employee; and
WHEREAS, this Agreement is prepared in conjunction with and under
the terms of the Plan; although all of the terms of the Plan and
the definitions used in the Plan have not been set forth herein,
such terms and definitions are incorporated herein and made a
part hereof by reference; and
WHEREAS, the provisions of the Plan shall govern any
interpretation of this Agreement; and
WHEREAS, the Employee has accepted the grant of Restricted Stock
and agreed to the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Award. The Company hereby grants to the Employee
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, an award of _____________ shares of Restricted
Stock on the date hereof, subject to all of the terms and
conditions in this Agreement and the Plan.
2. Shares Held in Escrow. Unless and until the shares of
Restricted Stock shall have vested in the manner set forth in
paragraphs 3, 4 or 5, such shares shall be issued in the name of
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the Employee and held by the Secretary of the Company as escrow
agent (the "Escrow Agent"), and shall not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise
hypothecated. The Company may instruct the transfer agent for
its Common Stock to place a legend on the certificates
representing the Restricted Stock or otherwise note its records
as to the restrictions on transfer set forth in this Agreement
and the Plan. The certificate or certificates representing such
shares shall be delivered by the Escrow Agent to the Employee
only after the shares have vested and all other terms and
conditions in this Agreement have been satisfied.
3. Certificate Legend. In addition to any legends placed
on the certificates pursuant to paragraph 2 of this Agreement,
and until the restrictions on such shares shall have lapsed, each
certificate representing shares of Restricted Stock shall bear
the following legend:
"The sale or other transfer of the shares of stock represented
by this certificate, whether voluntary, involuntary, or by
operation of law, is subject to certain restrictions on transfer
as set forth in The Harper Group, Inc. 1994 Omnibus Equity
Incentive Plan, and in a Restricted Stock Agreement. A copy of
the Plan and such Restricted Stock Agreement may be obtained from
the Chief Financial Officer of The Harper Group, Inc.."
4. Restriction on Shares. Of the __________ shares granted
hereunder, _____________ shares shall vest on _________ , and
_________ shares shall vest on __________ . On such vesting
dates, all restrictions set forth in this Agreement shall
terminate (except with respect to shares which have been
previously forfeited pursuant to paragraph 6 hereof) and the
Escrow Agent shall deliver the certificates evidencing the shares
to the Employee.
5. Committee Discretion. The Committee may decide, in its
absolute discretion, to accelerate the lapse of any restrictions
on the balance, or some lesser portion of the balance, of shares
of Restricted Stock at any time. If so accelerated, such
restrictions shall be considered to have lapsed as of the date
specified by the Committee.
6. Forfeiture. Except as provided in paragraphs 4 and 5,
the balance of the shares of Restricted Stock as to which
restrictions have not lapsed at the time of the Employee's
termination of service to the Company shall thereupon be
forfeited and automatically transferred to and reacquired by the
Company at no cost to the Company. For purposes of this
Section 6, the Employee will not be deemed to have terminated
his service with the Company until such time as he is no longer
serving the Company in any of the following capacities: officer,
employee or director. The Employee hereby appoints the Escrow
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Agent with full power of substitution, as the Employee's true
and lawful attorney-in-fact with irrevocable power and authority
in the name and on behalf of the Employee to take any action and
execute all documents and instruments, including, without
limitation, stock powers which may be necessary to transfer the
certificate or certificates evidencing such forfeited shares to
the Company upon such termination of employment.
7. Continuous Service Required. The restrictions on the
shares of Restricted Stock shall not lapse in accordance with any
of the provisions of this Agreement unless the Employee's service
with the Company in the capacity of officer, employee or director
shall have been continuous from the date of the award until the
date such lapse is deemed to have occurred.
8. Withholding of Taxes. Notwithstanding anything in
this Agreement to the contrary, no certificate representing
Restricted Stock may be released from the escrow established
pursuant to paragraph 2 of this Agreement unless and until the
Employee shall have delivered to the Company or its designated
Subsidiary the full amount of any federal, state or local income
or other taxes which the Company or such Subsidiary may be
required by law to withhold with respect to such shares.
Pursuant to such procedures as may be established by the
Committee in its discretion, the Employee may elect to satisfy
any such income tax withholding requirement by having the Company
withhold shares of Common Stock otherwise deliverable to the
Employee or by delivering to the Company already-owned shares of
Common Stock, provided that the Committee, in its discretion, may
disallow satisfaction of such withholding by the delivery or
withholding of stock.
9. After the Death of the Employee. Any distribution or
delivery to be made to the Employee under this Agreement shall,
if the Employee is then deceased, be made to the Employee's
designated beneficiary, or if no such beneficiary survives the
Employee, the person or persons entitled to such distribution or
delivery under the Employee's will or, if the Employee shall fail
to make testamentary disposition of such property, his or her
legal representative. Any transferee must furnish the Company
with (a) written notice of his or her status as transferee, and
(b) evidence satisfactory to the Company to establish the
validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.
10. Conditions to Issuance of Restricted Shares. The
shares of Restricted Stock deliverable to the Employee may be
either previously authorized but unissued shares or issued shares
which have been reacquired by the Company. The Company shall not
be required to issue any certificate or certificates for shares
of stock hereunder prior to fulfillment of all of the following
conditions:
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(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or
under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the
Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency, which the Committee
shall, in its absolute discretion, determine to be necessary or
advisable; and
(d) The lapse of such reasonable period of time following
the date of grant of the Restricted Stock as the Committee may
establish from time to time for reasons of administrative
convenience.
11. No Rights of Stockholder. Neither the Employee nor any
person claiming under or through the Employee shall be, or have
any of the rights or privileges of, a stockholder of the Company
in respect of any shares deliverable hereunder 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 the Employee or the Escrow Agent.
Except as provided in paragraph 12, after such issuance,
recordation and delivery, the Employee shall have all the rights
of a stockholder of the Company with respect to voting such
shares and receipt of dividends and distributions on such shares.
12. Changes in Stock. In the event that as a result of a
stock dividend, stock split, reclassification, recapitalization,
combination of shares or the adjustment in capital stock of the
Company or otherwise, or as a result of a merger, consolidation,
spin-off or other reorganization, the Company's Common Stock
shall be increased, reduced or otherwise changed, and by virtue
of any such change the Employee shall in his or her capacity as
owner of shares of Restricted Stock which have been awarded to
him or her (the "Prior Shares") be entitled to new or additional
or different shares of stock or securities (other than rights or
warrants to purchase securities), such new or additional or
different shares or securities shall thereupon be considered to
be Restricted Stock and shall be subject to all of the
restrictions and other conditions which were applicable to the
Prior Shares pursuant to the Plan. If the Employee receives
rights or warrants with respect to any Prior Shares, such rights
or warrants may be held or exercised by the Employee, provided
that until such exercise any such rights or warrants and after
such exercise any shares or other securities acquired by the
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exercise of such rights or warrants shall be considered to be
subject to all of the restrictions and other conditions which
were applicable to the Prior Shares pursuant to the Plan. The
Committee in its absolute discretion at any time may accelerate
the lapse of restrictions on all or any portion of such new or
additional shares of stock or securities, rights or warrants to
purchase securities or shares or other securities acquired by the
exercise of such rights or warrants.
13. Plan Governs. This Agreement is subject to all the
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.
14. 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
anddeterminations made by the Committee in good faith shall be
final and binding upon the Employee, the Company and all other
interested persons, and shall be given the maximum deference
permitted by law. 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.
15. No Effect on Employment. The terms of the 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.
16. No Effect on Participation. Nothing herein contained
shall affect the Employee's right to participate in and receive
benefits under and in accordance with the then current provisions
of any pension, insurance or other employee welfare plan or
program of the Company or any Subsidiary.
17. Non-Transferability of Award. Except as otherwise
herein provided, the shares of Restricted Stock 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 such award, or of any right or privilege
conferred hereby, contrary to the provisions hereof, or upon any
<PAGE> 14
attempted sale under any execution, attachment or similar process
upon the rights and privileges conferred hereby, such award and
the rights and privileges conferred hereby shall immediately
become null and void.
18. Binding Agreement. Subject to the limitation on the
transferability of the Restricted Stock contained in paragraph
17, this Agreement shall be binding upon and inure to the benefit
of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
19. 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 Chief Financial Officer, at 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.
20. Captions. The captions provided herein are for
convenience only and are not to serve as a basis for any
interpretation or construction of this Agreement.
21. Severability of Agreement. 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.
<PAGE> 15
IN WITNESS WHEREOF, the parties have executed this
Agreement, in duplicate, the day and year first above written.
THE HARPER GROUP, INC.
By ______________________________________
_________________________________________
Employee Signature
_________________________________________
_________________________________________
_________________________________________
Address
_________________________________________
Social Security Number
<PAGE> 16
Exhibit 4.4
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT made and entered into this ___th day of
__________, 199__ by and between The Harper Group, Inc., a
Delaware corporation (the "Company"), and _____________, an
employee of the Company or of one of its subsidiaries (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company has adopted the 1994 Omnibus Equity
Incentive Plan (the "Plan"), providing for the granting to its
employees of stock options relating to shares of its common stock
(the "Common Stock"); and
WHEREAS, the Plan provides for the grant of options which are
intended to be incentive stock options within the meaning of
Section 422A ("incentive stock options") of the Internal Revenue
Code of 1986, as amended; and
WHEREAS, the Employee is a key employee who is in a position to
make an important contribution to the long-term performance of
the Company.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Employee an
incentive stock option to purchase ________ shares of the Common
Stock at the price set forth in Paragraph 2 hereof, on the terms
and conditions hereinafter stated.
2. Exercise Price. The purchase price per share is __________
dollars ($______) (which is the fair market value of such Common
Stock at date of grant), which shall be paid in the legal tender
of the United States.
3. Number of Shares. The number of shares of Common Stock covered
hereby and the price per share thereof shall be proportionately
adjusted for any increase or decrease in the number of issued and
outstanding shares of Common Stock resulting from a subdivision
or consolidation of shares or the payment of a stock dividend in
excess of 2% or any other increase or decrease in the number of
issued and outstanding shares of Common Stock effected without
receipt of consideration by the Company.
<PAGE> 17
Subject to any required action of the stockholders of the
Company, if the Company shall be the surviving corporation in any
merger or consolidation, this option (to the extent that it is
still outstanding) shall pertain to and apply to the securities
of which a holder of the same number of shares of Common Stock
that are subject to the option would have been entitled. To the
extent that the foregoing adjustments relate to stock or
securities of the Company, any such adjustments shall be made by
the Human Resources and Compensation Committee (the "Committee"),
whose determination in that respect shall be final, binding and
conclusive.
In the event of a change in control (as defined below) any and
all outstanding options shall automatically vest in full and
shall be immediately exercisable without regards to any
limitations on the date of the occurrence of the change in
control. A change in control shall be deemed to have occurred
if:
(a) as a result of or in connection with any tender
offer, exchange offer, merger, or acquisition other
business combination, sale of assets or contested
election or combination of the foregoing, the
persons who were Directors of the company just prior
to such event cease to constitute a majority of the
Board of the Company or its successor;
(b) the stockholders of the company approve a merger or
consolidation of the Company with another Company
and as a result of such merger or consolidation less
than 70% of the outstanding voting securities of the
surviving or resulting Company shall then be owned
in the aggregate by the former stockholders of the
Company, other than (A) any party to such merger or
consolidations, or (B) any affiliates to any such
party;
(c) a tender offer or exchange offer is made and
consummated for the ownership of securities of the
Company representing 50% or more of the combined
voting power of the Company's then outstanding
voting securities;
(d) any person is or becomes the beneficial owner,
directly or indirectly, of at least 20% of the
combined voting power of the Company's outstanding
securities, except by reason of a repurchase by the
Company of its securities; or
(e) a plan of liquidation or an agreement for the sale
or transfer of substantially all of the Company's
<PAGE> 18
assets to another Company that is not a wholly owned
Company of the Company.
This provision may not be amended after the date of a Change in
Control without the written consent of a majority in both number
and interest of the participants in this Plan, other than those
participants who are both (1) not employed by the Company as of
the date of the Change in Control and (2) not receiving nor could
have commenced receiving benefits under the Plan as of the date
of the Change in Control, both immediately prior to the Change in
control and at the date of such amendment.
The grant of this option shall not affect in any way the right or
power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure
or to merge or to consolidate or to dissolve, liquidate or sell,
or transfer all or any part of its business or assets.
4. Commencement of Exercisability. This option may not be
exercised
in whole or in part until one year has elapsed from the date of
this Agreement. Subject to the conditions stated herein, the
right to exercise this option shall accrue in installments as
follows:
(i) During the period of 12 months beginning
___________ ___, 199________ one year after the date of this
Agreement, this option may be exercised to the extent of 25% of
the shares subject to option;
(ii) During the period of 12 months beginning __________
___, 199_____ , this option may be exercised to the extent of
25% of the shares subject to option plus the shares as to which
the right to exercise this option has previously accrued but has
not been exercised.
(iii) During the period of 12 months beginning __________
___, 199__ , this option may be exercised to the extent of 25%
of the shares subject to option plus the shares as to which the
right to exercise this option has previously accrued but has not
been exercised.
(iv) During the period of 24 months beginning
__________19, 199__, this option may be fully exercised to the
extent that it has not previously been exercised.
No partial exercise of this option will be permitted for
less than ten shares.
5. Termination of Option. In the event of termination of the
Employee's employment for any reason other than his death, this
option shall immediately terminate;
<PAGE> 19
provided, however, that if
such cessation of employment is with the consent of the Board of
Directors, expressed in the form of a resolution, or is pursuant
to retirement under the provisions of any pension, profit sharing
or other retirement plan of the Company then in effect, or is on
account of permanent illness or disability, this option may be
exercised (subject to the provisions of Paragraph 12 hereof)
within three months after the date he ceases to be an employee of
the Company, but only to the extent that it was exercisable on
the date of such cessation of employment.
6. Persons Eligible to Exercise. This option shall be exercisable
during the Employee's lifetime only by him and shall be
nontransferable by the Employee otherwise than by will or the
applicable laws of descent and distribution, or by a beneficiary
designation made in a form and manner acceptable to the
Committee.
7. After the Death of Employee. In the event of the Employee's
death while in the employ of the Company, or during a three-month
period following termination of employment during which the
Employee is permitted to exercise this option pursuant to
Paragraph 5 hereof, this option may be exercised (subject to the
provisions of Paragraph 12 hereof) at any time within one year
after the Employee's death by the Employee's transferee to the
same extent as the Employee could have exercised the option
immediately prior to the employee's death. The Employee's
transferee shall be the person or persons, designated by the
Employee on a Beneficiary Designation Form furnished by the
Committee, provided, however, that if at the time of the
Employee's death, there is no effective Beneficiary Designation
Form on file with the Committee, the Employee's transferee shall
be deemed to be the executor or administrator of the employee's
estate or any person who shall have acquired the option from the
Employee by the employee's will or the applicable law of descent
and distribution. Any such transferee exercising this option
must furnish the Company upon request of the Committee (a)
written notice of his status as transferee, (b) evidence
satisfactory to the Company to establish the validity of the
transfer of the option in 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. This option may be exercised by the
person then entitled to do so as to any share which may then be
purchased 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.
<PAGE> 20
9. No Rights of Stockholder. Neither the Employee nor any person
claiming under or through him 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, until the
date of the receipt of payment by the Company and the issuance of
a stock certificate to him for such shares in accordance with the
terms hereof.
10. Addresses For Notices. Any notice to be given to the Company
under the terms of this Agreement shall be addressed to The
Harper Group, Inc., in care of its Corporate Secretary, at
260Townsend Street, San Francisco, California 94107, or at such
other address as the Company may hereinafter designate in
writing. Any notice to be given to the Employee shall be
addressed to the Employee at the address set forth beneath his
signature hereto, or at any 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 and
deposited, postage and registry fee prepaid, in a post office or
branch post office regularly maintained by the United States
Government.
11. Non-Transferability of Option. Except as otherwise stated
herein, 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 or law or
otherwise) and shall not be subject to sale under execution,
attachment or similar process upon the rights and privileges
conferred hereby. Upon any attempt to transfer, assign, pledge
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 shall immediately
become null and void.
12. Maximum Term of Option. Notwithstanding any other provision
of
this Agreement, this option is not exercisable after the
expiration of eight years and three months from the date hereof.
13. Binding Agreement. Subject to the limitations on
transferability
contained herein, this Agreement shall be binding upon and inure
to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.
14. Suspension of Exercisability. The rights awarded hereby are
subject to the requirement that, if at any time the Committee
shall determine, in its sole discretion, that the listing,
registration or qualification of the shares of Common Stock
subject to such rights upon any securities exchange or under any
state or federal law, or the consent or approval of any
<PAGE> 21
government regulatory body, is necessary or desirable as a
condition, or in connection with, the granting of such rights or
the issue of shares in connection therewith, such rights may not
be exercised or paid in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee.
15. Arbitration. The parties hereto agree that any action
relating
to this stock option agreement shall be instituted and processed
in the courts in San Francisco County, California, and each party
waives the right to change of venue. Further, the parties agree
that any action relating to their agreement shall be submitted to
final and binding arbitration pursuant to the provisions of the
California Civil Code.
16. Option Has No Effect On Employment. Nothing in this Agreement
shall be construed as giving the Employee the right to be
retained as an Employee, as impairing the rights of the Company
to terminate the employee's service, or as altering the at-will
employment status of employee, as the case may be. The Company
shall have the right, which is 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.
17. Payment of Tax. Whenever shares of Common Stock are to be
issued
in satisfaction of the rights conferred hereby, the Company shall
have the right to require the optionee to remit to the Company an
amount sufficient to satisfy federal, state and local withholding
tax requirements prior to the delivery of any certificate or
certificates for such shares. Whenever payments are to be made
in cash, such payments shall be net of an amount sufficient to
satisfy federal, state and local withholding tax requirements.
18. 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.
19. 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
<PAGE> 22
for any action, determinations or interpretation made in good
faith with respect to the Plan or this Agreement.
IN WITNESS HEREOF, the parties hereto have executed this
Agreement, in duplicate, the day and year first above written.
THE HARPER GROUP, INC.
By___________________________
ACCEPTED:
________________________________
Employee
________________________________
Address
________________________________
<PAGE> 23
Exhibit 5.1
May 17, 1996
The Harper Group, Inc.
260 Townsend Street
San Francisco, CA 94107-0933
Re: The Harper Group, Inc./
Registration Statement on Form S-8
Ladies and Gentlemen:
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 1,250,000
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
1,250,000 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> 24
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
<PAGE> 25
Exhibit 23.1
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 report
dated March 8, 1996, incorporated by reference in the Annual
Report on Form 10-K of The Harper Group, Inc. for the year ended
December 31, 1995.
/s/ Deloitte & Touche LLP
San Francisco, California
May 17, 1996
