AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 1999.
REGISTRATION NO. ____________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLM INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
94-3041257
(I.R.S. Employer Identification No.)
ONE MARKET
STEUART STREET TOWER, SUITE 800
SAN FRANCISCO, CALIFORNIA 94105-1301
(Address, Including Zip Code, of Principal Executive Offices)
PLM INTERNATIONAL, INC. 1998 MANAGEMENT STOCK COMPENSATION PLAN, AS AMENDED
PLM INTERNATIONAL, INC. DIRECTORS' 1995 NONQUALIFIED STOCK OPTION PLAN,
AS AMENDED
(Full Title of the Plans)
SUSAN C. SANTO, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
PLM INTERNATIONAL, INC.
ONE MARKET, STEUART STREET TOWER, SUITE 800
SAN FRANCISO, CALIFORNIA 94105-1301
(Name and Address of Agent for Service)
(415) 905-7263
(Telephone Number, Including Area Code, of Agent for Service)
--------------------
Copy to:
THEODORE J. KOZLOFF, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR EMBARCADERO CENTER, SUITE 3800
SAN FRANCISCO, CALIFORNIA 94111
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED PRICE PER SHARE <F1> AGGREGATE OFFERING PRICE REGISTRATION FEE <F2>
<F1>
================================= ================= =========================== ========================== ===============
<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per share 820,000<F3> $6.8132 $5,343,450 $1,553.14
================================= ================= ========================== ========================== ===============
<FN>
<F1> Estimated solely for the purpose of calculating the registration fee. The
offering price has been calculated in accordance with Rules 457(c) and
457(h) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), in part on the basis of the average of the high and low
sale prices for a share of the registrant's common stock, par value $0.01
per share ("Common Stock"), on the American Stock Exchange on May 19, 1999.
<F2> The registration fee has been calculated in accordance with Section 6(b) of
the Securities Act.
<F3> Includes 700,000 shares of Common Stock issuable under the PLM
International, Inc. 1998 Management Stock Compensation Plan, as amended
(the "Management Plan") and 120,000 shares of Common Stock issuable under
the PLM International, Inc. Directors' 1995 Nonqualified Stock Option Plan,
as amended (the "Directors' Plan"). Pursuant to Rule 416 promulgated under
the Securities Act, this registration statement also covers such additional
number of shares of Common Stock as may be issued in connection with the
antidilution provisions of the Management Plan and the Directors' Plan.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION. *
Item 2. Registrant Information and Employee Plan Annual Information. *
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 promulgated under the Securities Act and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the registrant, PLM International, Inc., a
Delaware corporation (the "Company"), pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated by reference in this
registration statement:
(a) The Company's Annual Report on Form 10-K for the year ended December 31,
1998;
(b) All other reports of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
Company's Annual Report referred to in (a) above; and
(c) The description of the Common Stock contained in the Company's Registration
Statement on Form 8-A (File No. 1-9670) filed with the Commission pursuant
to Section 12(b) of the Exchange Act on March 22, 1989.
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 that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, will 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. Any statement contained herein
or in a document incorporated or deemed to be incorporated by reference herein
will be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document that is or is deemed to be incorporated by reference
herein modifies or supersedes such previous statement. Any such statement so
modified or superseded will not be deemed to constitute a part of this
registration statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware (the "DGCL"), a Delaware
corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses and liabilities
incurred by them in connection with any action, suit or proceeding to which they
are, or are threatened to be made, a party by reason of their serving in those
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action or proceeding, so long as they had no
reasonable cause to believe their conduct was unlawful. The statute expressly
provides that the power to indemnify authorized thereby is not exclusive of any
rights granted under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise. The Certificate of Incorporation of the Company and
By-laws of the Company provide for indemnification of present and former
directors and officers of the Company and persons serving as directors,
officers, employees or agents of other corporations or enterprises at the
request of the Company, each to the full extent permitted by the DGCL.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
will not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 (relating to liability for
unauthorized acquisitions or redemptions of, or dividends on, capital stock) of
the DGCL, or (iv) for any transactions from which the director derived an
improper personal benefit. The Certificate of Incorporation of the Company
contains such a provision.
The Company has entered into indemnification agreements with certain of
its directors and officers pursuant to which the Company has agreed to indemnify
each of them against expenses and losses incurred for claims brought against
them by reason of their being a director or officer of the Company. In addition,
the Company maintains insurance for the protection of its directors and officers
against claims asserted against them in their official capacities.
The preceding discussion of the Certificate of Incorporation of the
Company, the By-laws of the Company and the DGCL is not intended to be
exhaustive and is qualified in its entirety by reference to the complete texts
of the Certificate of Incorporation of the Company and the By-laws of the
Company and to the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
4.1 Certificate of Incorporation of the Company (filed as
Exhibit 3.1to the Company's Form 10-K filed with the
Commission on April 2, 1990 (File No. 1-9670) and
incorporated herein by reference)
4.2 Certificate of Amendment to the Certificate of
Incorporation of the Company (filed as Exhibit 1 to
the Company's Form 8-K filed with the Commission on
December 1, 1997 (File No. 1-9670) and incorporated
herein by reference)
4.3 By-laws of the Company (filed as Exhibit 3.2 to the
Company's Form 10-K filed with the Commission on
April 2, 1990 (File No. (1-9670) and incorporated
herein by reference)
4.4 Specimen Stock Certificate (filed as Exhibit 4.4 to
the Company's Registration Statement on Form S-3
filed with the Commission on August 2, 1994 (File No.
33-54869) and incorporated herein by reference)
5.1 Opinion of Susan C. Santo, Esq. regarding the
legality of the securities being registered
23.1 Consent of KPMG LLP, independent
accountants
23.2 Consent of Susan C. Santo, Esq. (included in her
opinion filed as Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of
this registration statement)
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Susan C. Santo his or her true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
<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 San Francisco, State of California, on this 24th
day of May 1999.
PLM INTERNATIONAL, INC.
By: /s/ Susan C. Santo
------------------------
Susan C. Santo
Vice President and General Counsel
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 date indicated.
- ------------------- Chairman, President and Chief Executive Officer
Robert N. Tidball (Principal Executive Officer) May 24, 1999
- ------------------- Vice President and Chief Financial Officer
J. Michael Allgood (Principal Financial and Accounting Officer) May 24, 1999
- ------------------- Director May 24, 1999
Randall L-W. Caudill
- ------------------- Director May 24, 1999
Douglas P. Goodrich
- ------------------- Director May 24, 1999
Warren G. Lichtenstein
- ------------------- Director May 24, 1999
Howard M. Lorber
- ------------------- Director May 24, 1999
Harold R. Somerset
- ------------------- Director May 24, 1999
Robert L. Witt
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1 Certificate of Incorporation of the Company (filed as Exhibit
3.1 to the Company's Form 10-K filed with the Commission on
April 2, 1990 (File No. 1-9670) and incorporated herein by
reference)
4.2 Certificate of Amendment to the Certificate of Incorporation
of the Company (filed as Exhibit 1 to the Company's Form 8-K
filed with the Commission on December 1, 1997 (File No.
1-9670) and incorporated herein by reference)
4.3 By-laws of the Company (filed as Exhibit 3.2 to the Company's
Form 10-K filed with the Commission on April 2, 1990 (File No.
1-9670) and incorporated herein by reference)
4.4 Specimen Stock Certificate (filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-3 filed with the
Commission on August 2, 1994 (File No. 33-54869) and
incorporated herein by reference)
5.1 Opinion of Susan C. Santo, Esq. regarding the legality of the
securities being registered
23.1 Consent of KPMG LLP, independent accountants
23.2 Consent of Susan C. Santo, Esq. (included in her opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this
registration statement)
Exhibit 5.1
May 24, 1999
PLM International, Inc.
One Market
Steuart Street Tower, Suite 800
San Francisco, California 94105-1301
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
I am Vice President and General Counsel to PLM International, Inc., a
Delaware corporation (the "Company"), and have acted as such in connection with
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") of the Company to be filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Act"). The Registration Statement relates to the issuance by
the Company of up to 820,000 shares (the "Shares") of the Company's common
stock, par value $0.01 per share ("Common Stock"), issuable under the PLM
International, Inc. 1998 Management Stock Compensation Plan, as amended and the
PLM International, Inc. Directors' 1995 Nonqualified Stock Option Plan, as
amended (such plans, collectively, the "Plans").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Act.
In connection with this opinion, I have examined (i) the Registration
Statement as proposed to be filed with the Commission, (ii) the Plans, (iii) the
Certificate of Incorporation and the By-laws of the Company, in each case as
amended to the date hereof, (iv) the form of certificate representing the Shares
and (vi) such records of the Company and such agreements, certificates of public
officials, certificates of officers or other representatives of the Company and
others and such other documents as I have considered necessary or appropriate as
a basis for the opinion set forth below.
In my examination, I have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of such copies. In making my examination of
documents executed by parties other than the Company, I have assumed that such
parties had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such parties
of such documents and the validity and binding effect thereof on such parties.
I am admitted to the bar of the State of California and I express no
opinion as to the laws of any other jurisdiction, except for the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware to the extent specifically referred to herein.
Based upon the foregoing and subject to the foregoing and to the
limitations, qualifications, exceptions and assumptions set forth herein, and
assuming (i) the valid issuance of options pursuant to the Plans, (ii) the
conformity of the certificates representing the Shares to the form thereof
examined by me and (iii) the due execution and countersignature of such
certificates, I am of the opinion that the Shares, when issued in accordance
with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
For purposes of this opinion, I have assumed that, prior to the
issuance of any of the Shares, (i) the Registration Statement, as finally
amended (including all necessary post-effective amendments), becomes effective;
(ii) the exercise price of the Shares issued under the Plans will not be less
than the par value of such Shares at the time of issuance; (iii) there will be
no agreements, indentures, mortgages, deeds of trust or instruments that affect
the ability of the Company to issue the Shares; and (iv) certificates
representing the Shares will be manually signed by an authorized officer of the
transfer agent for the Common Stock and will be registered by the registrar for
the Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not admit that I come into
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Susan C. Santo
-------------------------------------
Susan C. Santo
Vice President and General Counsel
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders
PLM International, Inc.
We consent to the use of our report incorporated herein by referencein
the Registration Statement (Form S-8) of PLM International, Inc.
/s/ KPMG LLP
------------------------------
San Francisco, California
May 24, 1999
