As filed with the Securities and Exchange Commission on July 1, 2002
Registration No. 333-53700
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PACER INTERNATIONAL, INC.
(Exact name of registrant as specified in charter)
Tennessee 4731 62-0935669
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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2300 Clayton Road, Suite 1200
Concord, CA 94520
(925) 979-4440
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Pacer International, Inc.
1999 Stock Option Plan
Pacer International, Inc.
2002 Stock Option Plan
(Full title of the plans)
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Donald C. Orris
Chairman, President and Chief Executive Officer
Pacer International, Inc.
5251 DTC Parkway, Suite 1000
Denver, Colorado 80111
(303) 694-5730
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
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With copies to:
James M. Lurie, Esq.
O'Sullivan LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-2400
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered (1) Per Share Offering Price Fee
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Common Stock; $.01 par value 2,535,334 (2) (2) $2,229.56
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Common Stock; $.01 par value 500,000 $15.82 (3) $ 727.72
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TOTAL REGISTRATION FEE: $2,957.28
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(1) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) These shares are offered under the Pacer International, Inc. 1999 Stock
Option Plan. Pursuant to Rule 457 (c) and 457 (h)(1), the maximum aggregate
offering price is calculated as the sum of (a) the product of 2,431,028
shares issuable upon exercise of outstanding options at the weighted
average strike price of approximately $9.29 per share, for an aggregate
offering price of $22,584,250.12, and (b) the product of the remaining
104,306 shares issuable under the plan and the average of the high ($16.02)
and low ($15.62) prices for the Common Stock as quoted in the Nasdaq
National Market on June 26, 2002, or $15.82, representing a maximum
aggregate offering price of $1,650,120.92.
(3) These shares are offered under the Pacer International, Inc. 2002 Stock
Option Plan. Pursuant to Rule 457(c) and 457(h)(1), the maximum aggregate
offering price is calculated as the sum of (a) the product of 500,000
shares issuable under the plan, shares issuable upon exercise of
outstanding options the price of which is calculated based upon the high
($16.02) and low ($15.62) prices for the Common Stock as quoted in the
Nasdaq National Market on June 26, 2002 approximately $15.82 per share, for
an aggregate offering price of $7,910,000.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The document(s) containing the information specified in Part I will
be sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act of 1933, as amended (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
(a) The following documents, which have been filed by Pacer
International, Inc., a Tennessee corporation (the Registrant"), with the
Commission, are incorporated herein by reference:
(i) The Registrant's definitive Prospectus dated June 12, 2002
filed pursuant to Rule 424(b) under the Securities Act.
(ii) The description of the Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on May 23, 2002.
(b) In addition, all documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of the filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under the Tennessee Business Corporation Act ("TBCA"), there is no
specific provision either expressly permitting or prohibiting a corporation from
limiting the liability of its directors for monetary damages. Our amended and
restated charter provides that, to the fullest extent permitted by the TBCA, a
director will not be liable to the corporation or its shareholders for monetary
damages for breach of his or her fiduciary duty as a director.
The TBCA provides that a corporation may indemnify any director or officer
against liability incurred in connection with a proceeding if the director or
officer acted in good faith or reasonably believed, in the case of conduct in
his or her official capacity with the corporation, that the conduct was in the
corporation's best interest. In all other civil cases, a corporation may
indemnify a director or officer who reasonably believed that his or her conduct
was not opposed to the best interest of the corporation. In
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connection with any criminal proceeding, a corporation may indemnify any
director or officer who had no reasonable cause to believe that his or her
conduct was unlawful.
In actions brought by or in the right of the corporation, however, the
TBCA does not allow indemnification if the director or officer is adjudged to be
liable to the corporation. Similarly, the TBCA prohibits indemnification in
connection with any proceeding charging improper personal benefit to a director
or officer if the director or officer is adjudged liable because a personal
benefit was improperly received.
In cases when the director or officer is wholly successful, on the merits
or otherwise, in the defense of any proceeding instigated because of his or her
status as a director or officer of a corporation, the TBCA mandates that the
corporation indemnify the director or officer against reasonable expenses
incurred in the proceeding. Notwithstanding the foregoing, the TBCA provides
that a court may order a corporation to indemnify a director or officer for
reasonable expense if, in consideration of all relevant circumstances, the court
determines that the individual is fairly and reasonably entitled to
indemnification, whether or not the standard of conduct set forth above was met.
Our amended bylaws provide that we will indemnify and advance expenses to
our directors and officers to the fullest extent permitted by the TBCA. We also
maintain insurance to protect any director or officer against any liability and
will enter into indemnification agreements with each of our directors.
In addition, the Registrant maintains liability insurance for its officers
and directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit Description
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No.
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3.1 Second Amended and Restated Charter of the Registrant.
3.2 Second Amended and Restated ByLaws of the Registrant.
4.1 Pacer International, Inc. 1999 Stock Option Plan
(incorporated by reference to Exhibit 10.29 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-53700)).
4.2 Amendment No. 1 to Pacer International, Inc. 1999 Stock
Option Plan (incorporated by reference to Exhibit 10.38 to
the Registrant's Registration Statement on Form S-1
(Registration No. 333-53700)).
4.3 Amendment No. 2 to Pacer International, Inc. 1999 Stock
Option Plan (incorporated by reference to Exhibit 10.50 to
the Registrant's Registration Statement on Form S-1
(Registration No. 333-53700)).
4.4 Pacer International, Inc. 2002 Stock Option Plan
(incorporated by reference to Exhibit 10.51 to the
Registrant's Registration Statement on Form S-1
(Registration No. 333-53700)).
5.1 Opinion of Bass, Berry & Sims PLC (including the consent of
such firm) regarding the legality of
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securities being offered.
23.1 Consent of Bass, Berry & Sims PLC (included in their
opinion filed as Exhibit 5.1 hereto).
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.1 Powers of Attorney (included on signature page).
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 end 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 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.
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(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on this 1st day of July,
2002.
Pacer International, Inc.
By: /s/ Donald C. Orris
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Donald C. Orris
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Pacer International, Inc.
(the "Registrant"), hereby severally constitute and appoint Donald C. Orris,
Lawrence C. Yarberry, Michael F. Killea and James M. Lurie, and each of them
individually, with full powers of substitution and resubstitution, our true and
lawful attorneys, with full powers to each of them to sign for us, in our names
and in the capacities indicated below, this Registration Statement on Form S-8,
and any and all amendments to this Registration Statement on Form S-8, and to
file or cause to be filed the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as each of them might
or could do in person, and hereby ratifying and confirming all that said
attorneys, and each of them, or their substitute or substitutes, shall do or
cause to be done by virtue of this Power of Attorney. This Power of Attorney may
be executed in counterparts.
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.
Signature Title Date
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Chairman of the Board,
/s/ Donald C. Orris President and Chief
------------------------------- Executive Officer July 1, 2002
Donald C. Orris
Executive Vice
/s/ Lawrence C. Yarberry President and Chief
------------------------------- Financial Officer July 1, 2002
Lawrence C. Yarberry
/s/ Joshua J. Harris
------------------------------- Director July 1, 2002
Joshua J. Harris
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/s/ Bruce H. Spector
---------------------------------------- Director July 1, 2002
Bruce H. Spector
/s/ Marc E. Becker
---------------------------------------- Director July 1, 2002
Marc E. Becker
/s/ Timothy J. Rhein
---------------------------------------- Director July 1, 2002
Timothy J. Rhein
/s/ Michael S. Gross
---------------------------------------- Director July 1, 2002
Michael S. Gross
/s/ Thomas L. Finkbiner
---------------------------------------- Director July 1, 2002
Thomas L. Finkbiner
/s/ John J. Hannan
---------------------------------------- Director July 1, 2002
John J. Hannan
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Exhibit Index
Exhibit Description
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No.
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3.1 Second Amended and Restated Charter of the Registrant.
3.2 Second Amended and Restated ByLaws of the Registrant.
4.1 Pacer International, Inc. 1999 Stock Option Plan (incorporated by
reference to Exhibit 10.29 to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-53700)).
4.2 Amendment No. 1 to Pacer International, Inc. 1999 Stock Option Plan
(incorporated by reference to Exhibit 10.38 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-53700)).
4.3 Amendment No. 2 to Pacer International, Inc. 1999 Stock Option Plan
(incorporated by reference to Exhibit 10.50 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-53700)).
4.4 Pacer International, Inc. 2002 Stock Option Plan (incorporated by
reference to Exhibit 10.51 to the Registrant's Registration Statement
on Form S-1 (Registration No. 333-53700)).
5.1 Opinion of Bass, Berry & Sims PLC (including the consent of such firm)
regarding the legality of securities being offered.
23.1 Consent of Bass, Berry & Sims PLC (included in their opinion filed as
Exhibit 5.1 hereto).
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.1 Powers of Attorney (included on signature page).