forms8.htm
As filed with the Securities and Exchange Commission on March 5, 2013
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
CAI INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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93-3109229
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Steuart Tower, 1 Market Plaza, Suite 900
San Francisco, California 94105
(Address of principal executive offices, including zip code)
CAI INTERNATIONAL, INC. 2007 EQUITY INCENTIVE PLAN
(Full title of the plan)
Victor M. Garcia
President and Chief Executive Officer
CAI International, Inc.
Steuart Tower, 1 Market Plaza, Suite 900
San Francisco, California 94105
(415) 788-0100
(Name, address and telephone number, including area code, of agent for service)
Copy to:
Sonny Allison
Perkins Coie LLP
1900 Sixteenth Street, Suite 1400
Denver, Colorado 80202
(303) 291-2300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer x
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Non-accelerated filer o
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Smaller reporting company ¨
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of Securities to Be Registered
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Amount to Be
Registered(1)
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Proposed Maximum
Offering Price Per
Share(2)
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Proposed Maximum
Aggregate Offering
Price(2)
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Amount of
Registration Fee(2)
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Common Stock, $0.0001 par value
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200,000 |
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$26.81 |
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$5,362,000 |
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$731.38 |
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers any additional shares of the registrant’s common stock that may become issuable under the 2007 Equity Incentive Plan as a result of any future stock splits, stock dividends or similar adjustments of the registrant’s outstanding common stock.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933, as amended. The Proposed Maximum Offering Price Per Share is estimated to be $26.81 based on the average of the high sales price and the low sales price for the registrant’s common stock as reported by the New York Stock Exchange on February 27, 2013.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference in this registration statement:
(a) The registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed on February 28, 2013, which contains audited financial statements for the most recent fiscal year for which such statements have been filed; and
(b) The description of the registrant’s common stock contained in the registrant’s Registration Statement on Form 8-A filed on March 28, 2007 under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description.
All documents filed by the registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof, and prior to the filing of a post-effective amendment that indicates that all the securities offered hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference in this registration statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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None.
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Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a corporation to indemnify its directors, officers, employees and agents against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement reasonably incurred, provided they act in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful, although in the case or proceedings brought by or on behalf of the corporation, such indemnification is limited to expenses and is not permitted if the individual is adjudged liable to the corporation (unless the Delaware Court of Chancery or the court in which such proceeding was brought determines otherwise in accordance with the DGCL). Section 102 of the Delaware General Corporation Law authorizes a corporation to limit or eliminate its directors’ liability to the corporation or its stockholders for monetary damages for breaches of fiduciary duties, other than for (1) breaches of the duty of loyalty; (2) acts or omissions not in good faith or that involve intentional misconduct or knowing violations of law; (3) unlawful payments of dividends, stock purchases or redemptions; or (4) transactions from which a director derives an improper personal benefit. Our certificate of incorporation contains such a provision.
Our bylaws, which incorporate Section 145 of the DGCL, provides that we will indemnify each director and officer against all claims and expenses resulting from the fact that such person was a director, officer, agent or employee of the registrant. A claimant is eligible for indemnification if the claimant (1) acted in good faith and in a manner that, in the claimant’s reasonable belief, was in or not opposed to the best interests of the registrant; or (2) in the case of a criminal proceeding, had no reasonable cause to believe the claimant’s conduct was unlawful. This determination will be made by our disinterested directors, our stockholders or independent counsel in accordance with Section 145 of the DGCL.
Section 145 of the DGCL authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation against any liability asserted against and incurred by such person in any such capacity, or arising out of such person’s status as such. We have obtained liability insurance covering our directors and officers for claims asserted against them or incurred by them in such capacity.
In addition, we have entered into agreements to indemnify our directors and certain of our officers in addition to the indemnification provided for in the certificate of incorporation and bylaws. These agreements, among other things, indemnify our directors and some of our officers for certain expenses (including attorneys fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in our right, on account of services by that person as a director or officer of CAI International, Inc. or as a director or officer of any of our subsidiaries, or as a director or officer of any other company or enterprise that the person provides services to at our request.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Exhibit No.
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Description
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5.1
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Opinion of Perkins Coie LLP regarding legality of the common stock being registered
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23.1
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Consent of KPMG LLP
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23.3
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Consent of Perkins Coie LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (see signature page)
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99.1
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CAI International, Inc. 2007 Equity Incentive Plan, as amended (incorporated by reference to Appendix A of the registrant’s Definitive Proxy Statement on Schedule 14A filed on April 27, 2012).
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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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b) To reflect in the prospectus any facts or events arising after the effective date of this 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 this registration statement; and
(c) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission 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 registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 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 registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Commission, 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 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 Securities Act and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all 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 March 5, 2013.
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CAI INTERNATIONAL, INC. |
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By: |
/s/ Timothy B. Page
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Name: Timothy B. Page
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Title: Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below authorizes Victor Garcia and Timothy B. Page, or either of them, as attorneys-in-fact with full power of substitution, to execute in the name and on the 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 indicated below on March 5, 2013.
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Signature
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Title
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/s/ Hiromitsu Ogawa
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Chairman
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Hiromitsu Ogawa
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/s/ Victor M. Garcia
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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| Victor M. Garcia |
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/s/ Timothy B. Page
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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| Timothy B. Page |
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/s/ Masaaki (John) Nishibori
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Director
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| Masaaki (John) Nishibori |
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/s/ Marvin Dennis
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Director
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| Marvin Dennis |
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/s/ David G. Remington
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Director
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| David G. Remington |
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/s/ Gary M. Sawka
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Director
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| Gary M. Sawka |
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EXHIBIT INDEX
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Exhibit No.
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Description
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Opinion of Perkins Coie LLP regarding legality of the common stock being registered
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Consent of KPMG LLP
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23.3
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Consent of Perkins Coie LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (see signature page)
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99.1
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CAI International, Inc. 2007 Equity Incentive Plan, as amended (incorporated by reference to Appendix A of the registrant’s Definitive Proxy Statement on Schedule 14A filed on April 27, 2012).
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