As filed with the Securities and Exchange Commission on October 21, 1997.
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MERCER INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Washington 91-6087550
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Brandschenke Str. 64
Zurich, Switzerland CH 8002
(Address of principal executive officers) (Zip Code)
AMENDED AND RESTATED 1992 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the Plans)
David R. Wilson
Foster Pepper & Shefelman PLLC
Suite 3400, 1111 Third Avenue
Seattle, Washington 98101
(206) 447-4400
(Name, address and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed reoffer or resale to the public by
affiliates of the registrant: as soon as is practicable after filing of the
Registration Statement.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share(2) Price(2) Fee(2)(3)
<S> <C> <C> <C> <C>
Common shares of 635,000 shares $ 8.50 $5,397,500 $1,636
beneficial interest, 265,000 shares $12.16 $3,222,400 $ 977
---------- -----
$1.00 par value $8,619,900 $2,613
- --------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), the amount of shares to be registered is the maximum amount
of shares issuable herein. See Note 3 to this table.
(2) Pursuant to Rules 457(c) and (h) of the Securities Act, the proposed
maximum offering price per common share of beneficial interest ("Common Stock")
subject to options has been calculated on the basis of the average exercise
price of outstanding options and on the basis of the price per share of Common
Stock not subject to options. As of October 20, 1997, options had been granted
to purchase 635,000 of the shares of Common Stock set forth in the table above,
pursuant to the Plan, with an aggregate average exercise price of $8.50 per
share. As of October 20, 1997, there were 265,000 shares of Common Stock not
subject to options and available for grant under the Plan, with a proposed
maximum offering price of $12.16 per share, which is the average of the high and
low prices for one share of Common Stock as reported by the NASDAQ National
Market System on October 14, 1997. The 900,000 shares of Common Stock reflected
in the above table are in addition to 1,100,000 shares of Common Stock subject
to options granted under the Plan, which were registered on Registration
Statement No. 33-90026. See Note 3 to this table.
(3) Pursuant to General Instruction E to Form S-8 under the Securities Act,
the prospectus filed as part of this Registration Statement will be used as a
combined prospectus in connection with this Registration Statement and
Registration Statement No. 33-90026. An aggregate of 1,100,000 shares is being
carried forward from Registration Statement No. 33-90026 for which a fee of
$5,069 previously was paid.
</TABLE>
<PAGE>
PROSPECTUS
MERCER INTERNATIONAL INC.
Brandschenke Str. 64
Zurich, Switzerland CH 8002
41 (1) 201 7710
2,000,000 Common Shares of Beneficial Interest
($1.00 par value per share)
This Prospectus relates to an unspecified number of common shares of
beneficial interest, $1.00 par value ("Common Stock") of Mercer International
Inc. (the "Company"), and is to be used in connection with the reoffer and
resale of shares of Common Stock (the "Shares") issuable to the selling
shareholders of the Company listed at the section entitled "Selling
Shareholders" herein (the "Selling Shareholders") upon exercise of options
issued, or which may be issued, under the Company's Amended and Restated 1992
Non- Qualified Stock Option Plan (the "Plan"). The Shares may be sold in the
market (The Nasdaq Stock Market's National Market System ("NASDAQ")) or in
privately negotiated transactions from time to time. The Company will not
receive any proceeds from the sale of Shares registered hereby.
The Company's Common Stock trades on NASDAQ. The last reported sale price
of a share of Common Stock on NASDAQ on October 17, 1997 was $12.00.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The offer and sale of the Shares will be made in accordance with the plan
of distribution described in this Prospectus. See "Plan of Distribution." The
Selling Shareholders reserve the sole right to accept and, together with its
agents from time to time, to reject, in whole or in part, any proposed purchase
of Shares to be made directly or through agents. The Company will pay all
expenses of the offering, other than selling commissions to or expenses of
brokers or dealers retained by the Selling Shareholders, which commissions and
expenses will be paid by the Selling Shareholders.
The date of this Prospectus is October 21, 1997.
<PAGE>
If an agent of any Selling Shareholder or a dealer is involved in the
sale of the Shares in respect of which this Prospectus is being delivered, the
net proceeds to the Selling Shareholders from such sale will be the purchase
price of such Shares less such commission in the case of an agent, the purchase
price of such Shares in the case of a dealer, and less, in each case, other
attributable issuance expenses. The aggregate proceeds to the Selling
Shareholders from all the Shares will be the purchase price of Shares sold less
the aggregate of agents' commissions and underwriters' discounts and other
expenses of issuance and distribution. See "Plan of Distribution" for possible
indemnification arrangements for the agents, dealers and underwriters.
No person has been authorized to give any information or to make any
representation not contained in this Prospectus. If given or made, such
information or representation must not be relied upon as having been authorized
by the Company or the Selling Shareholders. This Prospectus does not constitute
an offer to sell or the solicitation of an offer to buy any securities other
than the Common Stock offered by this Prospectus, nor does it constitute an
offer to any person in any jurisdiction in which such offer or solicitation
would be unlawful. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
TABLE OF CONTENTS
Page Page
Available Information 2 Use of Proceeds 3
Incorporation of Certain 3 Selling Shareholders 4
Documents by Reference Plan of Distribution 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Seven World Trade Center (13th Floor), New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661, and copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants,
like the Company, that file electronically with the Commission at the following
address: http://www.sec.gov. In addition, the Common Stock trades on NASDAQ, and
material filed by the Company can be inspected at the offices of the National
Association of Securities Dealers, Inc., Report Section, 1735 K Street, N.W.,
Washington, D.C. 20006.
2
<PAGE>
This Prospectus constitutes a part of a Registration Statement filed by
the Company with the Commission under the Securities Act of 1933, as amended.
This Prospectus omits certain information contained in that Registration
Statement, and reference is hereby made to that Registration Statement and the
exhibits filed therewith for further information with respect to the Company and
the Common Stock offered hereby. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement.
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1991, which contains the Company's Declaration of Trust, as amended.
(2) The Company's Annual Report on Form 10-K for the year ended December
31, 1996.
(3) The Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1997 and June 30, 1997.
(4) The Company's definitive Proxy Statement on Schedule 14A filed April
30, 1997.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
The Company will provide without charge to any person to whom a Prospectus
is delivered, on written or oral request of such person, a copy of any or all of
the foregoing documents incorporated herein by reference (other than exhibits to
such documents). Requests should be directed to:
Mr. Rene Randall
Mercer International Inc.
Brandschenke Str. 64
Zurich, Switzerland CH 8002
41 (1) 201 7710
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Shareholders.
3
<PAGE>
SELLING SHAREHOLDERS
The Selling Shareholders under this Prospectus are Trustees and
executive officers of the Company who may be deemed affiliates of the Company.
The names of the Selling Shareholders and the amount of Shares which will be
sold hereunder will be provided at a later date by a supplement to this
Prospectus.
PLAN OF DISTRIBUTION
The Selling Shareholders (or their pledgees, donees, transferees, or
other successors in interest) from time to time may sell all or a portion of the
Shares "at the market" to or through a marketmaker or into an existing trading
market, in private sales, including direct sales to purchasers, or otherwise at
prevailing market prices or at negotiated or fixed prices. By way of example,
and not by way of limitation, the Shares may be sold by one or more of the
following methods: (a) a block trade in which the broker or dealer so engaged
will attempt to sell the Shares as agent but may purchase and resell a portion
of the block as principal to facilitate the transaction; (b) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) an exchange distribution in accordance
with the rules of such exchange; and (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the seller may arrange for other brokers or
dealers to participate. Brokers or dealers will receive commissions or discounts
from the seller in amounts to be negotiated immediately prior to the sale. Such
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" within the meaning of the Securities Act of 1933, as
amended ("Securities Act"), in connection with such sales. In addition, any
securities covered by this Prospectus which qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than pursuant to
this Prospectus.
The Selling Shareholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the Shares
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealer which purchases Shares as principal or any profits received on the
resale of such Shares may be deemed to be underwriting discounts and commissions
under the Securities Act.
In order to comply with certain state securities laws, if applicable,
the Common Stock will not be sold in a particular state unless the Common Stock
has been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
The Common Stock offered hereby will be sold by the Selling
Shareholders acting as principals for their own account. The Company will
receive none of the proceeds from such sales.
4
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
In accordance with the instructional Note to Part I of Form S-8, the
information specified in Part I of Form S-8 has been omitted from this
Registration Statement on Form S-8 for offers and sales of common shares of
beneficial interest, $1.00 par value ("Common Stock") of Mercer International
Inc. (the "Company") pursuant to the Company's Amended and Restated 1992
Non-Qualified Stock Option Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement.
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1991, which contains the Company's Declaration of
Trust, as amended.
(2) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
(3) The Company's Quarterly Reports on Form 10-Q for the periods
ended March 31, 1997 and June 30, 1997.
(4) The Company's definitive Proxy Statement on Schedule 14A
filed April 30, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
No expert or counsel named in the Registration Statement has any
substantial interest in the securities of the Company.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 6.1 of the Company's Declaration of Trust provides as follows:
No Trustee, officer or agent of the Trust shall be liable to the Trust
or to any Trustee for any act or omission of any other Trustee,
Shareholder, officer or agent of the Trust or to be to any personal
liability whatsoever in tort, contract or otherwise in connection with
the affairs of this Trust except only that arising from his own willful
misfeasance, bad faith, gross negligence, or reckless disregard of
duty.
Section 6.4 of the Company's Declaration of Trust provides as follows:
Any person made a party to any action, suit or proceeding, or against
whom a claim or liability is asserted by reason of the fact that he,
his testator or intestate was or is a Trustee, officer or agent of the
Trust or active in such capacity on behalf of the Trust, shall be
indemnified and held harmless by the Trust against judgments, fines,
amounts paid on account thereof (whether in settlement or otherwise)
and reasonable expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense of such
action, suit, proceeding, claim or alleged liability or in connection
with any appeal therein, whether or not the same proceeds to judgment
or is settled or otherwise brought to a conclusion; provided, however,
that no such Person shall be so indemnified or reimbursed for any
claim, obligation or liability which arose out of the Trustee's,
officer's or agent's willful misfeasance, bad faith, gross negligence
or reckless disregard of duty; and provided further, that such Person
gives prompt notice thereof, executes such documents and takes such
action as will permit the Trust to conduct the defense or settlement
thereof and cooperates therein. In the event of a settlement approved
by the Trustees of any such claim, alleged liability, action, suit or
proceeding, indemnification and reimbursement shall be provided except
as to such matters covered by the settlement which the Trust is advised
by its counsel arose from the Trustee's, officer's or agent's willful
misfeasance, bad faith, gross negligence, or reckless disregard of
duty. Such rights of indemnification and reimbursement shall be
satisfied only out of the Trust Estate. The rights accruing to any
Person under these provisions shall not include any other right to
which he may be lawfully entitled, nor shall anything contained herein
restrict the right of the Trust to indemnify or reimburse such Person
in any proper case even though not specifically provided for herein,
nor shall anything contained herein restrict such right of a Trustee to
contribution as may be available under applicable law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Amended and Restated 1992 Non-Qualified Stock Option Plan
(Incorporated by reference from Exhibit 10.1 to the Company's
Form 10-Q for the quarter ended June 30, 1997.)
5 Opinion of Foster Pepper & Shefelman PLLC
II-2
<PAGE>
23.1 Consent of Foster Pepper & Shefelman PLLC (included as part
of their Opinion listed as Exhibit 5)
23.2 Consent of Peterson Sullivan & Co.
24 Power of Attorney (included on the signature page hereof)
Item 9. Undertakings.
(a) The undersigned Company 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 Securities Act;
(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
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 Exchange Act that are
incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
II-3
<PAGE>
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
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 caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Zurich, Switzerland on September 4, 1997.
MERCER INTERNATIONAL INC.
By: /s/ Jimmy S.H. Lee
Jimmy S.H. Lee
President
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Jimmy S.H. Lee or Maarten Reidel, or any of them, as attorneys-in-fact with full
power of substitution, to execute in the name and on behalf of each person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
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.
/s/ Jimmy S.H. Lee September 4, 1997
- -----------------------------------------
Jimmy S.H. Lee
President and Trustee
(Chief Executive Officer)
/s/ Maarten Reidel September 4, 1997
- -----------------------------------------
Maarten Reidel
Chief Financial Officer and Trustee
(Chief financial officer and principal
accounting officer)
/s/ Michel Arnulphy September 4, 1997
- -----------------------------------------
Michel Arnulphy
Trustee
/s/ C.S. Moon September 4, 1997
- -----------------------------------------
C.S. Moon
Trustee
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit Description Page
4.1 Amended and Restated 1992 Non-Qualified Stock Option Plan
(Incorporated by reference from Exhibit 10.1 to the
Company's Form 10-Q for the quarter ended June 30, 1997.)
5 Opinion of Foster Pepper & Shefelman PLLC
23.1 Consent of Foster Pepper & Shefelman PLLC (included
as part of their Opinion listed as Exhibit 5)
23.2 Consent of Peterson Sullivan & Co.
24 Power of Attorney (included on the signature page hereof)
II-6
<PAGE>
FOSTER PEPPER & SHEFELMAN PLLC
October 20, 1997
Board of Trustees
Mercer International Inc.
Brandschenke Str. 64
Zurich, Switzerland CH 8002
Gentlemen:
We have acted as counsel for Mercer International Inc., a Massachusetts
trust organized under the laws of the State of Washington (the "Company"), in
connection with the preparation and filing of a Registration Statement
("Registration Statement") on Form S-8 under the Securities Act of 1933, as
amended, for 900,000 shares (the "Shares") of the Company's common stock, $1.00
par value per share, that are issuable pursuant to the Company's Amended and
Restated 1992 Nonqualified Stock Option Plan (the "Plan"). We have examined the
Registration Statement, the Plan and such other documents and records as we deem
necessary for the purpose of this opinion.
Based on the foregoing, we are of the opinion that upon the issuance of the
Shares under the Plan as provided therein, the Shares will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
FOSTER PEPPER & SHEFELMAN PLLC
/s/ Foster Pepper & Shefelman PLLC
<PAGE>
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Mercer International Inc. of our report dated March 12,
1997,included in the Form 10-K of Mercer International Inc. for the year ended
December 31, 1996.
/s/ Peterson Sullivan P.L.L.C.
Peterson Sullivan P.L.L.C.
Seattle, Washington
October 15, 1997
<PAGE>
