<PAGE>
As filed with the Securities and Exchange Commission
on November 12, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CARIBINER INTERNATIONAL, INC.
(Exact name of registrant as specified in its Charter)
Delaware 13-3466655
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
16 West 61st Street, New York, New York 10023-7604
(Address of Principal Executive Offices) (Zip Code)
CARIBINER INTERNATIONAL, INC.
SINCLAIR OPTION AGREEMENTS
(Full Title of the Plan)
Robert F. Burlinson
Executive Vice President and Chief Financial Officer
CARIBINER INTERNATIONAL, INC.
16 West 61st Street
New York, New York 10023-7604
(212) 541-5300
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Burton Lehman, Esq.
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
(212) 756-2000
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered(1) Per Share Offering Price Fee
------------- ------------- --------- -------------- ---
Common Stock,
par value 600,000
$0.01 per share shares $11.24479(2) $6,746,875(3) $1,876
(1) In addition, pursuant to Rule 416 promulgated under the Securities Act of
1933, as amended (the "Securities Act"), this Registration Statement on Form
S-8 also covers an indeterminate number of shares as may be required to be
issued to cover possible adjustments under the Sinclair Option Agreements
(the "Plan"), including, without limitation, adjustments in the event of
stock dividends, stock splits, recapitalizations, restructurings, mergers,
consolidations, combinations or exchanges of shares, separations, spin-offs,
reorganizations, liquidations or other similar transactions effected without
the receipt of consideration and which results in an increase in the number
of outstanding shares of common stock, par value $0.01 per share (the
"Common Stock"), of Caribiner International, Inc. (the "Company").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) promulgated under the Securities Act. The price of
$11.24479 per share represents the weighted average exercise price per share
for the options under the plan (350,000 stock options exercisable at an
exercise price per share of $8.5625 and 250,000 stock options exercisable at
an exercise price share of $15.00).
(3) Calculated based on the weighted average exercise price per share pursuant
to Rule 457(h) under the Securities Act.
The Exhibit Index appears after the Signature Page of this Registration
Statement.
<PAGE>
EXPLANATORY NOTE
Pursuant to General Instruction C of Form S-8, this Registration Statement is
deemed to contain a prospectus meeting the requirements of Part I of Form S-3
relating to reofferings by certain persons of shares of common stock, par value
$0.01 per share (the "Common Stock"), of Caribiner International, Inc. (the
"Company"), to be acquired pursuant to the Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8
will be sent or given to the employee participating in the Sinclair Option
Agreements (the "Plan"), without charge, as specified by Rule 428 (b)(1) of the
Securities Act. To the extent material to the Plan, the documents provided to
the employee participating in the Plan shall include, but not be limited to, the
disclosure specified above. Those documents and the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents that have been filed by Caribiner
International, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998 (the "Form 10-K").
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1998, and March 31 and June 30, 1999.
3. The Company's Notice of Annual Meeting of Stockholders and Proxy
Statement for its Annual Meeting of Stockholders held on March 16, 1999,
contained on Form DEF 14A filed with the Commission on January 27, 1999.
4. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on February 28,
1996 pursuant to Section 12 of the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All reports and other 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
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in and to be a part of this
Registration Statement from the date of filing of such reports and documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Legal Opinion.
The legality of the issuance of the Common Stock being registered
hereby is being passed upon by Schulte Roth & Zabel LLP, 900 Third Avenue, New
York, New York 10022, counsel for the Company.
<PAGE>
Experts.
The consolidated financial statements of the Company at September
30, 1998 and 1997 and for each of the three years in the period ended September
30, 1998, appearing in the Company's Annual Report (Form 10-K) and have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
With respect to the unaudited consolidated interim financial
information for the three month periods ended December 31, 1998 and 1997, the
three and six month periods ended March 31, 1999 and 1998, and the three and
nine month periods ended June 30, 1999 and 1998, incorporated by reference in
this Registration Statement, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate reports, included in each of
the Company's Quarterly Reports on Form 10-Q for the quarters ended December 31,
1998, March 31, 1999 and June 30, 1999, and incorporated herein by reference,
state that they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their reports on
such information should be restricted, considering the limited nature of the
review procedures applied. The independent auditors are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 as amended (the
"Act"), for their reports on the unaudited interim financial information because
each such report is not a "report" or a "part" of the Registration Statement
prepared or certified by auditors within the meaning of Sections 7 and 11 of the
Act.
Item 6. Indemnification of Directors and Officers
Limitation of Directors' Liability.
The Delaware General Corporation Law ("DGCL") provides that a
corporation's certificate of incorporation may include a provision limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. However, no such
provision can eliminate or limit the liability of a director (i) for any breach
of fiduciary duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of the law, (iii) under Section 174 of the DGCL, which relates
to liability for unlawful payments of dividends or unlawful stock repurchases or
redemptions, (iv) for any transactions from which the director derived an
improper personal benefit, or (v) for any act or omission prior to the adoption
of such provision in the certificate of incorporation. The Company's Restated
Certificate of Incorporation, as amended, contains a provision eliminating the
personal liability for money damages of its directors to the full extent
permitted under the DGCL.
Indemnification and Insurance.
The DGCL contains provisions setting forth conditions under which a
corporation may indemnify its directors and officers. The Company's Restated
Certificate of Incorporation, as amended, provides that a director or officer
who is a party to any action, suit, or proceeding shall be entitled to be
indemnified by the Company to the extent permitted by the DGCL against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred by such director or officer in connection with such action, suit or
proceeding. The Company maintains a standard form of officers' and directors'
liability insurance policy which provides coverage to the officers and directors
of the Company for certain liabilities.
Item 7 Exemption from Registration Claimed.
Not Applicable.
<PAGE>
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
Registration Statement:
Exhibit No. Document
----------- --------
4A & 4B Caribiner International, Inc. Sinclair Option
Agreements , dated as of December 21, 1998
5 Opinion of Schulte Roth & Zabel LLP re: legality
of original issuance of shares of Common Stock
being registered.
15 Letter re: Unaudited Interim Financial
Information.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Schulte Roth & Zabel LLP (included in
Exhibit 5)
24 Powers of Attorney (see page II-1 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;
(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 15(d) of the Exchange Act that are incorporated by reference in
the 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 securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide
offering thereof; and
(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 the purpose of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
<PAGE>
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.
<PAGE>
REOFFER
PROSPECTUS
CARIBINER INTERNATIONAL, INC.
16 West 61st Street
New York, New York 10023-7604
(212) 541-5300
----------------
Common Stock, par value $.01 per share
600,000 Shares
----------------
This Prospectus relates to the subsequent resale or offer for sale
on the New York Stock Exchange, or otherwise, of shares of common stock, par
value $0.01 per share ("Common Stock"), of Caribiner International, Inc., a
Delaware corporation (the "Company"), that may be acquired by Christopher A.
Sinclair, Chairman of the Board of Directors, President and Chief Executive
Officer of the Company, who may be deemed to be an affiliate of the Company
pursuant to the purchase by him of shares of Common Stock upon the exercise of
options granted to him under the Sinclair Option Agreements with the Company
(the "Plan"). In connection with such resales or offers for sale, such persons
and the brokers through whom such shares may be sold may be deemed to be
"underwriters" as the term is defined in Section 2(11) of the Securities Act of
1933, as amended (the "Securities Act"). The Company will not receive any of the
proceeds from the sale of the shares offered thereby. All expenses in connection
with the registration under the Securities Act and the offering of the
securities hereby will be borne by the Company, but all selling and other
expenses incurred by an individual Registered Stockholder (as defined herein)
will be borne by such Registered Stockholder.
----------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------
No person has been authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
contained in this Prospectus, and, if given or made, such information or
representations must not be relied upon. This Prospectus does not constitute an
offer to sell or solicitation of an offer to buy any of the securities offered
hereby in any state to any person to whom it is unlawful to make such offer or
solicitation.
----------------------------------------------------------
The date of this Prospectus is November 12, 1999.
A-1
<PAGE>
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 and other information with the Securities and
Exchange Commission (the "Commission"), which may be inspected and copied at the
public reference facilities maintained by the Commission located at Judiciary
Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C., 20549, and at the
regional offices of the Commission located at 7 World Trade Center, Suite 1300,
New York, New York 10048, and at the Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates from the Public Reference Room of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Information
regarding the Public Reference Room may be obtained by calling the Commission at
1-800-SEC-0330 (1-800-732-0330). The Common Stock is listed on the New York
Stock Exchange. Reports, proxy statements, information statements and other
information concerning the Company can be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005. Also, the
Company files such reports, proxy statements and other information with the
Commission pursuant to the Commission's EDGAR system. The Commission maintains a
Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
pursuant to the EDGAR system. The address of the Commission's web site is
http://www.sec.gov.
A copy of any document incorporated by reference in the Registration
Statement (not including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by reference into
the information that the Registration Statement incorporates) of which this
Prospectus forms a part but which is not delivered with this Prospectus will be
provided by the Company without charge to any person to whom this Prospectus has
been delivered, upon the oral or written request of such person. Such requests
should be directed to Robert F. Burlinson, Executive Vice President, Chief
Financial and Administration Officer and Secretary, Caribiner International,
Inc. 16 West 61st Street, New York, New York 10023-7604 (telephone number (212)
541-5300).
THE COMPANY
The Company is a leading international producer of meetings, events and
training programs, a provider of audiovisual equipment rentals and sales and
related staging services, and a provider of related corporate meeting services
and business communications services that enable businesses to inform, sell and
to train their sales forces, dealers, franchisees, partners, stockholders and
employees. The Company has executive offices located at 16 West 61st Street, New
York, New York 10023-7604.
THE OFFERING
This Reoffer Prospectus relates to shares of Common Stock that may be
acquired by a key employee (the "Registered Stockholder") of the Company, who
may be deemed to be an "affiliate" of the Company, pursuant to the exercise of
options ("Options") granted to such person under the Plan. The address of the
Registered Stockholder is c/o Caribiner International, Inc., 16 West 61st
Street, New York, New York 10023-7604.
A-2
<PAGE>
The following table sets forth certain information with respect to the
Registered Stockholder:
Number of
Number of Shares to be Number of
shares Acquired Under Shares to be
Beneficially the Plan and Owned After
Registered Position with owned as of Offered Hereby Exercises and
Stockholder the Company 11/12/99 (1) (2) Sales
Christopher Chairman of 205,501 600,000 605,500
A. Sinclair the Board,
President and
Chief
Executive
Officer
(1) Includes 200,001 shares of Common Stock underlying options granted
to the Registered Stockholder under the Plan, since such options are
exercisable as of, or within 60 days of November 12, 1999.
(2) Represents all shares of Common Stock underlying options granted
under the Plan to the Registered Stockholder.
The Registered Stockholder did not own more than 1% of the Common Stock
outstanding as of November 12, 1999.
Such Options were granted by the Company, subject to stockholder approval,
on December 21, 1998, pursuant to two stock option agreements (which together
constitute the Plan), each dated as of December 21, 1998, between the Company
and Mr. Sinclair. The grant of the Options was approved by a vote of the
Company's stockholders at an annual meeting held on March 16, 1999. The Options
of Mr. Sinclair will become exercisable, in part, as of December 21, 1999. The
Options expire, absent special circumstances, on December 21, 2008.
This Prospectus shall relate also any of the shares that Mr. Sinclair may
donate or transfer to charitable and other non-profit institutions and family
members. The number of shares issuable under the Options, and consequently the
number of shares that may be sold hereunder, may be changed pursuant to
anti-dilution provisions of the Options.
Shares of Common Stock covered by this Reoffer Prospectus may be offered
and sold from time to time by the Registered Stockholder through brokers on the
New York Stock Exchange or otherwise, at the prices prevailing at the time of
such sales. To the Company's knowledge, no specific brokers or dealers have been
designated by the Registered Stockholder nor has any agreement been entered into
in respect of brokerage commissions or for the exclusive or coordinated sale of
any securities that may be offered pursuant to this Reoffer Prospectus. The
Registered Stockholder and any broker or other person through whom sales are
made by the Registered Stockholder may be regarded as "underwriters" within the
meaning of the Securities Act, although the Registered Stockholder disclaim such
status, and their compensation may be regarded as underwriters' compensation.
A-3
<PAGE>
The Company will not receive any of the proceeds from the offering
hereunder. All expenses incurred in connection with the registration under the
Securities Act and the offering of the securities hereby will be borne by the
Company, but all selling and other expenses incurred by the Registered
Stockholder will be borne by such Registered Stockholder. On November 10, 1999
the closing market price of the Common Stock, as reported by the New York Stock
Exchange, was $7.875.
A-4
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
Incorporated herein by reference and made a part hereof are:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998 (the "Form 10-K").
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1998, and March 31 and June 30, 1999.
3. The Company's Notice of Annual Meeting of Stockholders and Proxy
Statement for its Annual Meeting of Stockholders held on March 16, 1999, filed
with the Commission on Form DEF 14A on January 27, 1999.
4. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on February 28,
1996 pursuant to Section 12 of the Exchange Act, including any amendments or
reports filed for the purpose of updating such description.
All of such documents are on file with the Commission. All documents
subsequently filed by the Company pursuant to Section 13(a), 13(c), 14, or 15(d)
of the Exchange Act prior to the filing of a post-effective amendment which
indicates that all securities to be offered pursuant hereto have been sold or
which deregisters all such securities then remaining unsold shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
date of the filing of such documents.
EXPERTS
The consolidated financial statements of the Company at September
30, 1998 and 1997, and for each of the three years in the period ended September
30, 1998, appearing in the Company's Annual Report (Form 10-K) and have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference.
With respect to the unaudited consolidated interim financial
information for the three month periods ended December 31, 1998 and 1997, the
three and six month periods ended March 31, 1999 and 1998, and the three and
nine month periods ended June 30, 1999 and 1998, incorporated by reference in
this Prospectus, Ernst & Young LLP have reported that they have applied limited
procedures in accordance with professional standards for a review of such
information. However, their separate reports, included in each of the Company's
Quarterly Reports on Form 10-Q for the quarters ended December 31, 1998, March
31, 1999 and June 30, 1999, and incorporated herein by reference, state that
they did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their reports on such
information should be restricted, considering the limited nature of the review
procedures applied. The independent auditors are not subject to the liability
provisions of Section 11 of the Securities Act for their reports on the
unaudited interim financial information because that report is not a "report" or
a "part" of the Registration Statement prepared or certified by auditors within
the meaning of Sections 7 and 11 of the Securities Act.
A-5
<PAGE>
LEGAL MATTERS
Certain legal matters with respect to the Common Stock being offered
hereby are being passed upon by Schulte Roth & Zabel LLP, 900 Third Avenue, New
York, New York 10022, counsel for the Company.
INDEMNIFICATION
Limitation of Directors' Liability.
The Delaware General Corporation Law ("DGCL") provides that a
corporation's certificate of incorporation may include a provision limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. However, no such
provision can eliminate or limit the liability of a director (i) for any breach
of fiduciary duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
knowing violation of the law, (iii) under Section 174 of the DGCL, which relates
to liability for unlawful payments of dividends or unlawful stock repurchases or
redemptions, (iv) for any transactions from which the director derived an
improper personal benefit, or (v) for any act or omission prior to the adoption
of such provision in the certificate of incorporation. The Company's Restated
Certificate of Incorporation, as amended, contains a provision eliminating the
personal liability for money damages of its directors to the full extent
permitted under the DGCL.
Indemnification and Insurance.
The DGCL contains provisions setting forth conditions under which a
corporation may indemnify its directors and officers. The Company's Restated
Certificate of Incorporation, as amended, provides that a director or officer
who is a party to any action, suit, or proceeding shall be entitled to be
indemnified by the Company to the extent permitted by the DGCL against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred by such director or officer in connection with such action, suit or
proceeding. The Company maintains a standard form of officers' and directors'
liability insurance policy which provides coverage to the officers and directors
of the Company for certain liabilities.
A-6
<PAGE>
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
-----------------
Page
----
Available Information .................................................... A-2
The Offering ............................................................. A-2
Documents Incorporated By Reference. ..................................... A-5
Experts .................................................................. A-5
Legal Matters ............................................................ A-6
Indemnification .......................................................... A-6
-----------------------------------------
Caribiner International, Inc. has filed with the Securities and Exchange
Commission, Washington, D.C. a Registration Statement under the Securities Act
of 1933 with respect to this Offering. This Prospectus omits certain
information contained in the Registration Statement. The information omitted
may be obtained from the Securities and Exchange Commission upon payment of
the regular charge therefor.
CARIBINER INTERNATIONAL, INC.
600,000 Shares
-----------------------------------------
COMMON STOCK
PAR VALUE
$0.01 PER SHARE
-----------------------------------------
PROSPECTUS
November 12, 1999
A-7
<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 New York, State of New York, on this 11th day of
November, 1999.
CARIBINER INTERNATIONAL, INC.
By: /s/ Robert F. Burlinson
----------------------------------------
Robert F. Burlinson
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoint Christopher A. Sinclair and Robert F. Burlinson, and each of them, as
their attorneys-in-fact, with full power of substitution, to execute in their
names and on behalf of the Registrant and each such person, individually and in
each capacity stated below, one or more amendments (including post-effective
amendments) to this Registration Statement as the attorney-in-fact shall from
time to time deem appropriate and to file any such amendment to this
Registration Statement with the Securities and Exchange Commission. Pursuant to
the requirements of the Securities Act of 1933, this Registration Statement has
been signed below by the following persons in the capacities indicated, on this
11th day of November, 1999.
Name and Signature Title
- ------------------ -----
/s/ Christopher A. Sinclair Chairman of the Board, President and
- --------------------------- Chief Executive Officer
(Principal Executive Officer)
/s/Robert F. Burlinson Executive Vice President and Chief
- ---------------------- Financial Officer
Robert F. Burlinson (Principal Financial and Accounting Officer)
/s/ Errol M. Cook Director
- -----------------
Errol M. Cook
Vice Chairman of the Board
- ----------------------
Raymond S. Ingleby
/s/ Sidney Lapidus Director
- ------------------
Sidney Lapidus
/s/ David E. Libowitz Director
- ---------------------
David E. Libowitz
/s/ Bryan D. Langton Director
- --------------------
Bryan D. Langton
/s/ C. Anthony Wainwright Director
- -------------------------
C. Anthony Wainwright
II-1
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
4A & 4B Caribiner International, Inc. Sinclair Stock Option
Agreements, dated as of December 21, 1998.
5 Opinion of Schulte Roth & Zabel LLP re: legality of
original issuance of shares of Common Stock being
registered.
15 Letter re: Unaudited Interim Financial Information.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Schulte Roth & Zabel LLP (included in Exhibit 5).
24 Powers of Attorney (see page II-1 of this Registration
Statement).
<PAGE>
Exhibit 4A
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT made as of the 21st day of December,
1998, between Caribiner International, Inc., a Delaware corporation (hereinafter
called the "Corporation"), and Christopher A. Sinclair, the Corporation's
President and Chief Executive Officer (hereinafter called the "Participant").
WHEREAS, the Corporation desires to give the Participant an
opportunity to participate in the long-term growth of the Corporation by
granting to the Participant options to purchase the Corporation's common stock,
par value $0.01 per share (the "Common Stock"), pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Grant of Options. Subject to the approval and ratification by the
stockholders of the Corporation, the Corporation hereby grants to the
Participant the right and option (hereinafter called the "Option") to purchase
an aggregate of up to Two Hundred Fifty Thousand (250,000) shares (the "Shares")
of Common Stock (such number being subject to adjustment as provided in
paragraph 7 hereof) on the terms and subject to the conditions herein set forth.
Such Option shall vest and become exercisable as follows: (i) thirty-three and
one-third percent (33-1/3%) of the Option herein granted (for up to Eighty Three
Thousand Three Hundred Thirty-four (83,334) shares) shall vest and may be
exercised at any time on or after the first anniversary of this Agreement
(unless terminated earlier pursuant to paragraph 6 hereof), (ii) thirty-three
and one-third percent (33-1/3%) of the Option herein granted (for up to Eighty
Three Thousand Three Hundred Thirty-three (83,333) shares) shall vest and may be
exercised on or after the second anniversary of this Agreement (unless
terminated earlier pursuant to paragraph 6 hereof) and (iii) the remaining
thirty-three and one-third percent (33-1/3%) of the Option herein granted (for
up to Eighty Three Thousand Three Hundred Thirty-three (83,333) shares) shall
vest and may be exercised on or after the third anniversary of this Agreement
(unless terminated earlier pursuant to paragraph 6 hereof). The Option granted
hereby is not intended to be an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
the Agreement shall be construed and interpreted in accordance with such
intention.
2. Exercise Price. The exercise price of the Shares covered by the
Option shall be Fifteen Dollars and No Cents ($15.00) per Share.
3. Term of Option. Subject to paragraph 8 hereof, the Option granted
hereby shall be exercisable in accordance with paragraph 1. The Participant's
right to exercise the aforementioned Option shall expire ten (10) years from the
date hereof (the "Expiration Date"). Unless terminated earlier pursuant to
paragraph 6 hereof, the Option may not be exercised after the Expiration Date.
4. Nontransferability. The Option granted hereby shall not be
transferable otherwise than by will or the laws of descent and distribution.
More particularly (except as provided in the preceding sentence), the Option may
not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of in any way, shall not be assignable by operation of law, and shall not be
subject to execution, attachment or similar process. Any attempted sale,
assignment, transfer, pledge, hypothecation or other disposition of the
4A-1
<PAGE>
Option contrary to the provisions hereof, and the levy of any execution,
attachment or similar process upon the Option, shall be null and void and
without effect. The Option may be exercised by the Participant only during his
lifetime or following his death pursuant to paragraph 6 hereof.
5. Disclosure and Risk.
(a) The Participant represents and warrants to the Corporation
as follows:
(i) The Participant acknowledges that (A) neither the Option
nor the Shares have been registered for resale under the Securities Act of
1933, as amended (the "Securities Act"), and (B) the Corporation is under
no obligation to effect the registration under the Securities Act of the
Option and/or the Shares.
(ii) The Shares will be acquired by the Participant for the
Participant's own account, for investment and not with a view to, or for
resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
(iii) The Corporation has made available to the Participant
the opportunity to ask questions of the officers and management of the
Corporation and to acquire information about the business and financial
condition of the Corporation and has, and at the time of exercise of the
Option will have, all information necessary for him to make an informed
investment decision.
(iv) He has received a copy of the Plan.
(b) Each certificate representing the Shares will be endorsed
with the following or a substantially similar legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
COVERING SUCH SECURITIES, OR (ii) THE CORPORATION RECEIVES A
WRITTEN OPINION FROM COUNSEL FOR THE HOLDER OF THESE
SECURITIES, REASONABLY SATISFACTORY TO THE CORPORATION,
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION MAY BE MADE PURSUANT TO
RULE 144 PROMULGATED UNDER THE SECURITIES ACT OR IS OTHERWISE
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS."
The Corporation need not allow a transfer of any of the Shares
unless one of the conditions specified in the foregoing legend is satisfied. The
Corporation may also instruct its transfer agent not to allow the transfer of
any of the Shares unless one of the conditions specified in the foregoing legend
is satisfied.
4A-2
<PAGE>
Any legend endorsed on a certificate pursuant to the foregoing
language and the stop transfer instructions with respect to such Shares shall be
removed, and the Corporation shall promptly issue a certificate without such
legend to the holder thereof if (i) the Shares are registered under the
Securities Act and a prospectus meeting the requirements of Section 10 of the
Securities Act is available and has been delivered or (ii) the holder provides
the Corporation with a written opinion from counsel for such holder of the
Shares, reasonably satisfactory to the Corporation, to the effect that a sale,
transfer, assignment, pledge, hypothecation or other disposition of such Shares
may be made without registration.
6. Termination of Employment; Disability; Retirement; Death.
(a) In the event that the Participant shall cease to be an
employee of the Corporation for any reason other than death, Disability,
Retirement, termination with or without Cause, or resignation for Good Reason
(each as defined below), the Option may be exercised by the Participant (to the
extent that the Participant shall have been entitled to do so as of the date of
the termination of his employment with the Corporation) at any time prior to the
Expiration Date of the Option or within 30 days after Participant shall so cease
to be an employee of the Corporation, whichever is earlier. So long as the
Participant shall continue to be an employee of the Corporation, the Option
shall not be affected by any change of duties or position. The provisions of
this Section 6(a) shall be subject to the provisions of Section 6(e) below.
(b) In the event of the Disability or Retirement of the
Participant, the unexercised portion of the Option that is held by the
Participant on the date of such Disability or Retirement, whether or not
otherwise exercisable on such date, shall be exercisable one (1) year from the
date of Disability or Retirement. "Disability" shall mean any termination of
employment with the Corporation or a subsidiary because of a long-term or total
disability, as determined by the Compensation Committee (the "Committee") of the
Board of Directors (the "Board") of the Corporation in its sole discretion.
"Retirement" shall mean a termination of employment with the Corporation or a
subsidiary either (i) on a voluntary basis by a recipient who is at least 65
years of age or (ii) otherwise with the written consent of the Committee in its
sole discretion.
(c) During the lifetime of the Participant, the Option shall
be exercisable only by him (or by his legal guardian or representative). In the
event of the death of the Participant while he is an employee of the Corporation
or any subsidiary, the Option (or unexercised portion thereof) which is held by
the Participant at the date of death, whether or not exercisable on the date of
death, shall be exercisable in accordance with the terms of this Agreement by
the beneficiary designated by the Participant for such purpose (the "Designated
Beneficiary") or if no Designated Beneficiary shall have been appointed or if
the Designated Beneficiary shall predecease the Participant, by the
Participant's personal representatives, heirs or legatees at any time for a
period of one (1) year after the date of the Participant's death and any portion
of the Option which is not exercised during such one (1) year period shall be
forfeited.
In the event of the death of the Participant following a termination
of employment due to Retirement or Disability, if such death occurs before the
Option (or any portion thereof) is exercised, the Option (or portion thereof)
that is held by the Participant on the date of termination of employment,
whether or not exercisable on such date, shall be exercisable by such
Participants Designated Beneficiary or if no Designated Beneficiary shall have
been appointed or if the Designated Beneficiary shall predecease the
Participant, by the Participant's personal representatives, heirs or legatees at
any time for a period of one (1) year after the date of the Participant's death
and any portion of the Option which is not exercised during such one (1) year
period shall be forfeited.
4A-3
<PAGE>
(d) In the event the Participant is terminated for Cause, the
Option shall be exercisable by the Participant (to the extent that the
Participant shall have been entitled to do so as of the date of the termination
of his employment with the Corporation for Cause) at any time prior to the
Expiration Date or within sixty (60) days after Participant's termination for
Cause, whichever is earlier. "Cause" shall have the meaning set forth in Section
9(a) of that certain Employment Agreement by and between the Corporation and the
Participant, dated as of December 21, 1998.
(e) In the event the Participant is terminated without Cause
or if Participant resigns for Good Reason, automatically upon any such
termination or resignation, any unexercised portion of the Option shall
immediately vest and become fully exercisable (without regard to the vesting
provisions set forth in Paragraph 1 above), and the entire unexercised portion
of the Option shall thereafter be exercisable (in whole or in part) at any time
after such termination or resignation (as the case may be) prior to the
Expiration Date, or for a period of two years after such termination or
resignation (as the case may be), whichever is earlier. As used herein, the term
"Good Reason" shall have the meaning set forth in Section 9(d) of that certain
Employment Agreement by and between the Corporation and the Participant, dated
as of December 21, 1998.
7. Changes in Capital Structure. If all or any portion of the Option
shall be exercised subsequent to any stock dividend, stock split,
recapitalization, merger, consolidation, combination or exchange of shares,
separation, spin-off, reorganization, liquidation or the like occurring after
the date hereof, as a result of which shares of any class shall be issued in
respect of outstanding Common Stock or shares of Common Stock shall be changed
into the same or a different number of shares of the same or another class or
classes, the person or persons exercising the Option shall receive, for the
aggregate price paid upon such exercise, the aggregate number and class of
shares which, if the Shares (as authorized at the date hereof) had been
purchased at the date hereof for the same aggregate price (on the basis of the
price per share set forth in paragraph 2 hereof) and had not been disposed of,
such person or persons would be holding at the time of such exercise as a result
of such purchase and all such share dividends, stock splits, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, separations,
spin-offs, reorganizations, liquidations or the like; provided, however, that no
fractional shares shall be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of any fractional share not
issued. In no event shall any adjustments be made to the Option as a result of
the issuance or redemption of securities of the Corporation for cash or other
consideration, or upon the exercise of any conversion rights of any securities
of the Corporation.
8. Method of Exercising Option. Subject to the terms and conditions
of this Agreement, the Option may be exercised in whole or in part by giving
written notice to the Secretary of the Corporation, at the address set forth
below the Corporation's signature to this Agreement or such other location as
may be designated by the Secretary of the Corporation. Such notice shall state
the Participants election to exercise the Option and the number of Shares in
respect of which it is being exercised, and shall be signed by the person or
persons so exercising the Option. Payment for the Shares may be made (i) in cash
or (ii) at the option of the Committee, or, in absence of the Committee, the
Board, by delivery of Common Stock already owned by the Participant and having
an aggregate Market Price (as defined in the Plan) on the date of such delivery
equal to the aggregate exercise price of the shares so purchased or (iii) at the
option of the Committee, or, in absence of the Committee, the Board, by delivery
of a combination of cash and Common Stock having an aggregate Market Price on
the date of such delivery equal to the aggregate exercise price of the shares so
purchased. The Corporation shall deliver a certificate or certificates
representing the shares of Common Stock so purchased as soon as practicable
after the notice of election has been received. In the event the Option shall be
exercised by any person or persons other than the Participant, the notice of
election shall be accompanied by appropriate proof of the right of such person
4A-4
<PAGE>
or persons to exercise the Option. All shares of Common Stock that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid
and nonassessable.
9. Change of Control.
(a) As long as Participant is an employee of the Corporation, a
"Change of Control" of the Corporation shall cause the Option (or the
unexercised portion thereof), whether or not currently exercisable, to become
immediately exercisable, in whole or in part, as of the effective date of such
Change of Control without regard to any vesting provisions or condition
precedent which may be contained in paragraph 1 of this Agreement. For purposes
of this paragraph, a "Change of Control" shall be deemed to have occurred if (i)
any person or "group" (other than Warburg, Pincus Investors, L.P. or any
affiliate thereof) acquires, in a single transaction or series of related
transactions, 50% or more of the outstanding Common Stock; (ii) during any
period of two consecutive years, individuals that at the beginning of such
period constitute the Board cease for any reason to constitute a majority
thereof, unless the election, or the nomination for election by the
stockholders, of each such new director was approved by a vote of at least
two-thirds of the directors then still in office which were directors at the
beginning of the period; or (iii) the sale of all or substantially all of the
assets of the Corporation (other than to a wholly-owned subsidiary of the
Corporation).
(b) Notwithstanding the provisions of paragraph 9(a), in the case
that the Corporation is merged or consolidated with another corporation, or the
assets or stock of the Corporation is acquired by another corporation, or a
separation, reorganization or liquidation of the Corporation occurs, the Board,
or the Board of Directors of any corporation assuming the obligations of the
Corporation hereunder, shall make appropriate provisions for the protection of
the Option by substitution on an equitable basis of appropriate stock of the
Corporation, or appropriate stock of the merged, consolidated or otherwise
reorganized corporation, provided that only the excess of the aggregate Market
Price of the shares subject to the Option immediately after such substitution
over the aggregate exercise price thereof is not less than the excess of the
aggregate Market Price of the shares subject to the Option immediately before
such substitution over the aggregate exercise price thereof.
10. Optionee Not a Stockholder. The Participant shall not have any
rights as a stockholder with respect to any shares of Common Stock subject to
the Option prior to the date on which he is recorded as the holder of such
shares on the records of the Corporation.
11. Taxes. The Corporation may make such provisions and take such
steps as it may deem necessary or appropriate for the withholding of all
federal, state, local and other taxes required by law to be withheld with
respect to the Option including, but not limited to (i) reducing the number of
shares of Common Stock otherwise deliverable, based upon their fair market value
on the date of exercise, to permit deduction of the amount of any such
withholding taxes from the amount otherwise payable under this Agreement; (ii)
deducting the amount of any such withholding taxes from any other amount then or
thereafter payable to the Participant; or (iii) requiring the Participant,
Designated Beneficiary or legal representative to pay to the Corporation the
amount required or desirable to enable it to satisfy its withholding obligations
as a condition of releasing the Common Stock.
4A-5
<PAGE>
12. General Provisions.
(a) The Corporation shall at all times during the term of the
Option reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Option Agreement, shall pay all fees and
expenses necessarily incurred by the Corporation in connection therewith, and
shall use its best efforts to comply with all laws and regulations which, in the
reasonable opinion of counsel to the Corporation, are applicable thereto.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
(c) Any notice to be given hereunder by either party to the
other shall be in writing and shall be given either by personal delivery,
facsimile or by mail, registered or certified, postage prepaid, return receipt
requested, or by overnight delivery addressed to the other party at the
respective addresses or facsimile numbers set forth below their signatures to
this Agreement, or at any other address or facsimile number as such party may
hereafter specify in writing.
(d) No amendments or modifications to this Agreement shall be
binding unless made in writing and signed by the parties hereto.
(e) The waiver by either party of a breach of any term or
provision of this Agreement shall not operate or be construed as a waiver of a
subsequent breach of the same provision or of the breach of any other term or
provision of this Agreement.
(f) As used herein, the masculine gender shall include the
feminine and the neuter genders, the neuter shall include the masculine and the
feminine genders, the singular shall include the plural, and the plural shall
include the singular.
(g) The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
(h) The invalidity or enforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
(i) NEITHER THE PLAN NOR THIS AGREEMENT SHALL BE (1) CONSTRUED
AS GIVING THE PARTICIPANT THE RIGHT TO BE RETAINED IN THE EMPLOY OF THE
CORPORATION OR ANY SUBSIDIARY THEREOF OR TO BE ENTITLED TO ANY REMUNERATION OR
BENEFITS NOT SET FORTH IN THE PLAN OR THIS AGREEMENT OR (2) INTERFERE WITH OR
LIMIT THE RIGHT OF THE CORPORATION OR ANY SUBSIDIARY THEREOF TO MODIFY THE TERMS
OF OR TERMINATE THE PARTICIPANT'S EMPLOYMENT AT ANY TIME WITH OR WITHOUT CAUSE.
13. Incorporation by Reference. Reference is hereby made to the
Corporation's 1996 Stock Option Plan, as amended as of February 27, 1998 (the
"Plan"). Although it is expressly understood and agreed that the Options granted
herein are not subject to the Plan, the following provisions of the Plan are
hereby incorporated herein by reference and shall be deemed to be a part hereof
as is set forth fully herein: Article 3 (Administration) of the Plan; Section
5.6 (Exercise and Payment) of the Plan; Section 5.8 (Rights as a Stockholder) of
the Plan; Section 5.9 (General Restrictions) of the Plan; Article 6
4A-6
<PAGE>
(Nontransferability of Options) of the Plan; Section 7.6 (Leave of Absence) of
the Plan; Article 8 (Adjustment Upon Changes in Capitalization) of the Plan and
Article 11 (Miscellaneous Provisions) of the Plan. In the event the Plan is
terminated for any reason whatsoever, notwithstanding such termination, the
foregoing provisions shall remain applicable to the terms and conditions of the
Options herein granted as if such Plan had not been terminated.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
PARTICIPANT
/s/ Christopher A. Sinclair
---------------------------
Name: Christopher A. Sinclair
Address: 16 West 61st Street
New York, New York 10023
Facsimile: (212) 541-5384
CARIBINER INTERNATIONAL, INC.
By: /s/ Errol M. Cook
---------------------
Address: 16 West 61st Street
New York, New York 10023
Facsimile: (212) 541-5384
4A-7
<PAGE>
Exhibit 4B
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT made as of the 21st day of December,
1998, between Caribiner International, Inc., a Delaware corporation (hereinafter
called the "Corporation"), and Christopher A. Sinclair, the Corporation's
President and Chief Executive Officer (hereinafter called the "Participant").
WHEREAS, the Corporation desires to give the Participant an
opportunity to participate in the long-term growth of the Corporation by
granting to the Participant options to purchase the Corporation's common stock,
par value $0.01 per share (the "Common Stock"), pursuant to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Grant of Options. Subject to the approval and ratification by the
stockholders of the Corporation, the Corporation hereby grants to the
Participant the right and option (hereinafter called the "Option") to
purchase an aggregate of up to Three Hundred Fifty Thousand (350,000) shares
(the "Shares") of Common Stock (such number being subject to adjustment as
provided in paragraph 7 hereof) on the terms and subject to the conditions
herein set forth. Such Option shall vest and become exercisable as follows: (i)
thirty-three and one-third percent (33-1/3%) of the Option herein granted (for
up to One Hundred Sixteen Thousand Six Hundred Sixty Seven (116,667) shares)
shall vest and may be exercised at any time on or after the first anniversary of
this Agreement (unless terminated earlier pursuant to paragraph 6 hereof), (ii)
thirty-three and one-third percent (33-1/3%) of the Option herein granted (for
up to One Hundred Sixteen Thousand Six Hundred Sixty Seven (116,667) shares)
shall vest and may be exercised on or after the second anniversary of this
Agreement (unless terminated earlier pursuant to paragraph 6 hereof) and (iii)
the remaining thirty-three and one-third percent (33-1/3%) of the Option herein
granted (for up to One Hundred Sixteen Thousand Six Hundred Sixty Six (116,666)
shares) shall vest and may be exercised on or after the third anniversary of
this Agreement (unless terminated earlier pursuant to paragraph 6 hereof). The
Option granted hereby is not intended to be an "incentive stock option" within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Agreement shall be construed and interpreted in accordance with
such intention.
2. Exercise Price. The exercise price of the Option shall be the
average of the high and low reported consolidated trading prices of the
Company's Common Stock, as reported on the New York Stock exchange on the date
first set forth above, which is Eight Dollars and Fifty-six and One Quarter
Cents ($8.5625) per share.
3. Term of Option. Subject to paragraph 8 hereof, the Option granted
hereby shall be exercisable in accordance with paragraph 1. The Participant's
right to exercise the aforementioned Option shall expire ten (10) years from the
date hereof (the "Expiration Date"). Unless terminated earlier pursuant to
paragraph 6 hereof, the Option may not be exercised after the Expiration Date.
4. Nontransferability. The Option granted hereby shall not be
transferable otherwise than by will or the laws of descent and distribution.
More particularly (except as provided in the preceding sentence), the Option may
not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of
4B-1
<PAGE>
in any way, shall not be assignable by operation of law, and shall not be
subject to execution, attachment or similar process. Any attempted sale,
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment or
similar process upon the Option, shall be null and void and without effect. The
Option may be exercised by the Participant only during his lifetime or following
his death pursuant to paragraph 6 hereof.
5. Disclosure and Risk.
(a) The Participant represents and warrants to the Corporation
as follows:
(i) The Participant acknowledges that (A) neither the
Option nor the Shares have been registered for resale under the Securities
Act of 1933, as amended (the "Securities Act"), and (B) the Corporation is
under no obligation to effect the registration under the Securities Act of
the Option and/or the Shares.
(ii) The Shares will be acquired by the Participant for
the Participant's own account, for investment and not with a view to, or
for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
(iii) The Corporation has made available to the
Participant the opportunity to ask questions of the officers and
management of the Corporation and to acquire information about the
business and financial condition of the Corporation and has, and at the
time of exercise of the Option will have, all information necessary for
him to make an informed investment decision.
(iv) He has received a copy of the Plan.
(b) Each certificate representing the Shares will be endorsed
with the following or a substantially similar legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES
LAWS, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS (i) THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
COVERING SUCH SECURITIES, OR (ii) THE CORPORATION RECEIVES A
WRITTEN OPINION FROM COUNSEL FOR THE HOLDER OF THESE
SECURITIES, REASONABLY SATISFACTORY TO THE CORPORATION,
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION MAY BE MADE PURSUANT TO
RULE 144 PROMULGATED UNDER THE SECURITIES ACT OR IS OTHERWISE
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS."
The Corporation need not allow a transfer of any of the Shares
unless one of the conditions specified in the foregoing legend is satisfied. The
Corporation may also instruct its transfer agent not to allow the transfer of
any of the Shares unless one of the conditions specified in the foregoing legend
is satisfied.
4B-2
<PAGE>
Any legend endorsed on a certificate pursuant to the foregoing
language and the stop transfer instructions with respect to such Shares shall be
removed, and the Corporation shall promptly issue a certificate without such
legend to the holder thereof if (i) the Shares are registered under the
Securities Act and a prospectus meeting the requirements of Section 10 of the
Securities Act is available and has been delivered or (ii) the holder provides
the Corporation with a written opinion from counsel for such holder of the
Shares, reasonably satisfactory to the Corporation, to the effect that a sale,
transfer, assignment, pledge, hypothecation or other disposition of such Shares
may be made without registration.
6. Termination of Employment; Disability; Retirement; Death.
(a) In the event that the Participant shall cease to be an
employee of the Corporation for any reason other than death, Disability,
Retirement, termination with or without Cause, or resignation for Good Reason
(each as defined below), the Option may be exercised by the Participant (to the
extent that the Participant shall have been entitled to do so as of the date of
the termination of his employment with the Corporation) at any time prior to the
Expiration Date of the Option or within 30 days after Participant shall so cease
to be an employee of the Corporation, whichever is earlier. So long as the
Participant shall continue to be an employee of the Corporation, the Option
shall not be affected by any change of duties or position. The provisions of
this Section 6(a) shall be subject to the provisions of Section 6(e) below.
(b) In the event of the Disability or Retirement of the
Participant, the unexercised portion of the Option that is held by the
Participant on the date of such Disability or Retirement, whether or not
otherwise exercisable on such date, shall be exercisable one (1) year from the
date of Disability or Retirement. "Disability" shall mean any termination of
employment with the Corporation or a subsidiary because of a long-term or total
disability, as determined by the Compensation Committee (the "Committee") of the
Board of Directors (the "Board") of the Corporation in its sole discretion.
"Retirement" shall mean a termination of employment with the Corporation or a
subsidiary either (i) on a voluntary basis by a recipient who is at least 65
years of age or (ii) otherwise with the written consent of the Committee in its
sole discretion.
(c) During the lifetime of the Participant, the Option shall be
exercisable only by him (or by his legal guardian or representative). In the
event of the death of the Participant while he is an employee of the Corporation
or any subsidiary, the Option (or unexercised portion thereof) which is held by
the Participant at the date of death, whether or not exercisable on the date of
death, shall be exercisable in accordance with the terms of this Agreement by
the beneficiary designated by the Participant for such purpose (the "Designated
Beneficiary") or if no Designated Beneficiary shall have been appointed or if
the Designated Beneficiary shall predecease the Participant, by the
Participant's personal representatives, heirs or legatees at any time for a
period of one (1) year after the date of the Participant's death and any portion
of the Option which is not exercised during such one (1) year period shall be
forfeited.
In the event of the death of the Participant following a termination
of employment due to Retirement or Disability, if such death occurs before the
Option (or any portion thereof) is exercised, the Option (or portion thereof)
that is held by the Participant on the date of termination of employment,
whether or not exercisable on such date, shall be exercisable by such
Participants Designated Beneficiary or if no Designated Beneficiary shall have
been appointed or if the Designated Beneficiary shall predecease the
Participant, by the Participant's personal representatives, heirs or legatees at
any time for a period of one (1) year after the date of the Participant's death
and any portion of the Option which is not exercised during such one (1) year
period shall be forfeited.
4B-3
<PAGE>
(d) In the event the Participant is terminated for Cause, the
Option shall be exercisable by the Participant (to the extent that the
Participant shall have been entitled to do so as of the date of the termination
of his employment with the Corporation for Cause) at any time prior to the
Expiration Date or within sixty (60) days after Participant's termination for
Cause, whichever is earlier. "Cause" shall have the meaning set forth in Section
9(a) of that certain Employment Agreement by and between the Corporation and the
Participant, dated as of December 21, 1998.
(e) In the event the Participant is terminated without Cause or
if Participant resigns for Good Reason, automatically upon any such termination
or resignation, any unexercised portion of the Option shall immediately vest and
become fully exercisable (without regard to the vesting provisions set forth in
Paragraph 1 above), and the entire unexercised portion of the Option shall
thereafter be exercisable (in whole or in part) at any time after such
termination or resignation (as the case may be) prior to the Expiration Date, or
for a period of two years after such termination or resignation (as the case may
be), whichever is earlier. As used herein, the term "Good Reason" shall have the
meaning set forth in Section 9(d) of that certain Employment Agreement by and
between the Corporation and the Participant, dated as of December 21, 1998.
7. Changes in Capital Structure. If all or any portion of the Option
shall be exercised subsequent to any stock dividend, stock split,
recapitalization, merger, consolidation, combination or exchange of shares,
separation, spin-off, reorganization, liquidation or the like occurring after
the date hereof, as a result of which shares of any class shall be issued in
respect of outstanding Common Stock or shares of Common Stock shall be changed
into the same or a different number of shares of the same or another class or
classes, the person or persons exercising the Option shall receive, for the
aggregate price paid upon such exercise, the aggregate number and class of
shares which, if the Shares (as authorized at the date hereof) had been
purchased at the date hereof for the same aggregate price (on the basis of the
price per share set forth in paragraph 2 hereof) and had not been disposed of,
such person or persons would be holding at the time of such exercise as a result
of such purchase and all such share dividends, stock splits, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, separations,
spin-offs, reorganizations, liquidations or the like; provided, however, that no
fractional shares shall be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of any fractional share not
issued. In no event shall any adjustments be made to the Option as a result of
the issuance or redemption of securities of the Corporation for cash or other
consideration, or upon the exercise of any conversion rights of any securities
of the Corporation.
8. Method of Exercising Option. Subject to the terms and conditions
of this Agreement, the Option may be exercised in whole or in part by giving
written notice to the Secretary of the Corporation, at the address set forth
below the Corporation's signature to this Agreement or such other location as
may be designated by the Secretary of the Corporation. Such notice shall state
the Participants election to exercise the Option and the number of Shares in
respect of which it is being exercised, and shall be signed by the person or
persons so exercising the Option. Payment for the Shares may be made (i) in cash
or (ii) at the option of the Committee, or, in absence of the Committee, the
Board, by delivery of Common Stock already owned by the Participant and having
an aggregate Market Price (as defined in the Plan) on the date of such delivery
equal to the aggregate exercise price of the shares so purchased or (iii) at the
option of the Committee, or, in absence of the Committee, the Board, by delivery
of a combination of cash and Common Stock having an aggregate Market Price on
the date of such delivery equal to the aggregate exercise price of the shares so
purchased. The Corporation shall deliver a certificate or certificates
representing the shares of Common Stock so purchased as soon as practicable
after the notice of election has been received. In the event the Option shall be
exercised by any person or persons other than the Participant, the notice of
election shall be accompanied by appropriate proof of the right of such person
4B-4
<PAGE>
or persons to exercise the Option. All shares of Common Stock that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid
and nonassessable.
9. Change of Control.
(a) As long as Participant is an employee of the Corporation, a
"Change of Control" of the Corporation shall cause the Option (or the
unexercised portion thereof), whether or not currently exercisable, to become
immediately exercisable, in whole or in part, as of the effective date of such
Change of Control without regard to any vesting provisions or condition
precedent which may be contained in paragraph 1 of this Agreement. For purposes
of this paragraph, a "Change of Control" shall be deemed to have occurred if (i)
any person or "group" (other than Warburg, Pincus Investors, L.P. or any
affiliate thereof) acquires, in a single transaction or series of related
transactions, 50% or more of the outstanding Common Stock; (ii) during any
period of two consecutive years, individuals that at the beginning of such
period constitute the Board cease for any reason to constitute a majority
thereof, unless the election, or the nomination for election by the
stockholders, of each such new director was approved by a vote of at least
two-thirds of the directors then still in office which were directors at the
beginning of the period; or (iii) the sale of all or substantially all of the
assets of the Corporation (other than to a wholly-owned subsidiary of the
Corporation).
(b) Notwithstanding the provisions of paragraph 9(a), in the case
that the Corporation is merged or consolidated with another corporation, or the
assets or stock of the Corporation is acquired by another corporation, or a
separation, reorganization or liquidation of the Corporation occurs, the Board,
or the Board of Directors of any corporation assuming the obligations of the
Corporation hereunder, shall make appropriate provisions for the protection of
the Option by substitution on an equitable basis of appropriate stock of the
Corporation, or appropriate stock of the merged, consolidated or otherwise
reorganized corporation, provided that only the excess of the aggregate Market
Price of the shares subject to the Option immediately after such substitution
over the aggregate exercise price thereof is not less than the excess of the
aggregate Market Price of the shares subject to the Option immediately before
such substitution over the aggregate exercise price thereof.
10. Optionee Not a Stockholder. The Participant shall not have any
rights as a stockholder with respect to any shares of Common Stock subject to
the Option prior to the date on which he is recorded as the holder of such
shares on the records of the Corporation.
11. Taxes. The Corporation may make such provisions and take such
steps as it may deem necessary or appropriate for the withholding of all
federal, state, local and other taxes required by law to be withheld with
respect to the Option including, but not limited to (i) reducing the number of
shares of Common Stock otherwise deliverable, based upon their fair market value
on the date of exercise, to permit deduction of the amount of any such
withholding taxes from the amount otherwise payable under this Agreement; (ii)
deducting the amount of any such withholding taxes from any other amount then or
thereafter payable to the Participant; or (iii) requiring the Participant,
Designated Beneficiary or legal representative to pay to the Corporation the
amount required or desirable to enable it to satisfy its withholding obligations
as a condition of releasing the Common Stock.
12. General Provisions.
(a) The Corporation shall at all times during the term of the
Option reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Option Agreement, shall pay all fees and
expenses necessarily incurred by the Corporation in connection therewith,
4B-5
<PAGE>
and shall use its best efforts to comply with all laws and regulations which, in
the reasonable opinion of counsel to the Corporation, are applicable thereto.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
(c) Any notice to be given hereunder by either party to the
other shall be in writing and shall be given either by personal delivery,
facsimile or by mail, registered or certified, postage prepaid, return receipt
requested, or by overnight delivery addressed to the other party at the
respective addresses or facsimile numbers set forth below their signatures to
this Agreement, or at any other address or facsimile number as such party may
hereafter specify in writing.
(d) No amendments or modifications to this Agreement shall be
binding unless made in writing and signed by the parties hereto.
(e) The waiver by either party of a breach of any term or
provision of this Agreement shall not operate or be construed as a waiver of a
subsequent breach of the same provision or of the breach of any other term or
provision of this Agreement.
(f) As used herein, the masculine gender shall include the
feminine and the neuter genders, the neuter shall include the masculine and the
feminine genders, the singular shall include the plural, and the plural shall
include the singular.
(g) The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
(h) The invalidity or enforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
(i) NEITHER THE PLAN NOR THIS AGREEMENT SHALL BE (1) CONSTRUED
AS GIVING THE PARTICIPANT THE RIGHT TO BE RETAINED IN THE EMPLOY OF THE
CORPORATION OR ANY SUBSIDIARY THEREOF OR TO BE ENTITLED TO ANY REMUNERATION OR
BENEFITS NOT SET FORTH IN THE PLAN OR THIS AGREEMENT OR (2) INTERFERE WITH OR
LIMIT THE RIGHT OF THE CORPORATION OR ANY SUBSIDIARY THEREOF TO MODIFY THE TERMS
OF OR TERMINATE THE PARTICIPANT'S EMPLOYMENT AT ANY TIME WITH OR WITHOUT CAUSE.
13. Incorporation by Reference. Reference is hereby made to the
Corporation's 1996 Stock Option Plan, as amended as of February 27, 1998 (the
"Plan"). Although it is expressly understood and agreed that the Options granted
herein are not subject to the Plan, the following provisions of the Plan are
hereby incorporated herein by reference and shall be deemed to be a part hereof
as is set forth fully herein: Article 3 (Administration) of the Plan; Section
5.6 (Exercise and Payment) of the Plan; Section 5.8 (Rights as a Stockholder) of
the Plan; Section 5.9 (General Restrictions) of the Plan; Article 6
(Nontransferability of Options) of the Plan; Section 7.6 (Leave of Absence) of
the Plan; Article 8 (Adjustment Upon Changes in Capitalization) of the Plan and
Article 11 (Miscellaneous Provisions) of the Plan. In the event the Plan is
terminated for any reason whatsoever, notwithstanding such termination, the
foregoing provisions shall remain applicable to the terms and conditions of the
Options herein granted as if such Plan had not been terminated.
4B-6
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
PARTICIPANT
/s/ Christopher A. Sinclair
---------------------------
Name: Christopher A. Sinclair
Address: 16 West 61st Street
New York, New York 10023
Facsimile: (212) 541-5384
CARIBINER INTERNATIONAL, INC.
By: /s/ Errol M. Cook
---------------------
Address: 16 West 61st Street
New York, New York 10023
Facsimile: (212) 541-5384
4B-7
<PAGE>
Exhibit 5
[Letterhead of Schulte Roth & Zabel LLP]
Opinion of Schulte Roth & Zabel LLP
November 11, 1999
Caribiner International, Inc.
16 West 61st Street
New York, New York 10023-7604
Ladies and Gentlemen:
We have acted as counsel for Caribiner International, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the offer and sale of an aggregate of 600,000 shares of the Common
Stock, par value $.01 per share, of the Company, plus an indeterminate amount of
additional shares as may be required to prevent dilution covered by the
Registration Statement pursuant to Rule 416 under the Securities Act (the
"Shares"). The shares may be offered and sold from time to time by a senior
officer (the "Stockholder") of the Company who will acquire such shares upon the
exercise of stock options (the "Options").
In our capacity as counsel, we have examined originals, telecopies
or copies of such records of the Company and all such agreements, certificates
of public officials, certificates of officers or representatives of the Company
and others, and such other documents, certificates and corporate or other
records, as we have deemed necessary or appropriate as a basis for the opinion
set forth herein.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons signing or delivering any
instrument, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such copies. As
to questions of fact, we have relied, to the extent we deemed appropriate, upon
representations and certificates of officers of the Company, public officials
and other appropriate persons.
Based upon and subject to the foregoing, and having regard for such
legal considerations as we deem relevant, we are of the opinion that the Shares
to be offered and sold by the Stockholders pursuant to the Registration
Statement have been duly authorized, and when issued and delivered to and paid
for by the Stockholders in accordance with the terms of the Plan, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectuses which form a part thereof. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Schulte Roth & Zabel LLP
<PAGE>
Exhibit 15
Acknowledgement of Independent Accountants
Stockholders and Board of Directors
Caribiner International, Inc.
We are aware of the incorporation by reference in the Registration Statement
(Form S-8) of Caribiner International, Inc. (the "Company") for the registration
of 600,000 shares of its common stock reserved for issuance under the Sinclair
Option Agreements by and between Caribiner International, Inc. and Christopher
A. Sinclair of our reports dated February 10, 1999, May 11, 1999 and August 11,
1999 relating to the unaudited condensed consolidated interim financial
statements of the Company that are included in its Forms 10-Q for the quarters
ended December 31, 1998, March 31, 1999 and June 30, 1999.
/s/ Ernst & Young LLP
New York, New York
November 11, 1999
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-8) pertaining to the Sinclair Option
Agreements by and between Caribiner International, Inc. (the "Company") and
Christopher A. Sinclair and to the incorporation by reference therein of our
report dated December 18, 1998 with respect to the consolidated financial
statements of the Company included in its Annual Report (Form 10-K) for the year
ended September 30, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
November 11, 1999
