<PAGE>
As filed with the Securities and Exchange Commission on July 30, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
PEAK INTERNATIONAL LIMITED
(Exact name of registrant as specified in its charter)
Bermuda N/A
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Units 3,4,5 and 7, 37th Floor
Wharf Cable Tower
9 Hoi Shing Road
Tsuen Wan
N.T., Hong Kong
(Address of principal executive offices)(Zip code)
PEAK INTERNATIONAL LIMITED
1998 SHARE OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Peak International, Inc.
2111 Kramer Lane
Austin, Texas 78758
U.S.A.
(512) 339-4684
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share (2) Offering Price (2) Fee (2)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value US$0.01 per share 860,000 $ 12.2500 $ 10,535,000 $ 3,107.83
=======================================================================================================================
</TABLE>
(1) Includes (i) 700,000 shares of Common Stock available for issuance pursuant
to the exercise of options to purchase Common Stock under the 1998 Option
Share Plan and (ii) 160,000 shares of Common Stock available for issuance
under the 1998 Employee Stock Purchase Plan. This Registration Statement
also covers such additional number of shares of Common Stock which may be
offered and issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
<PAGE>
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 of the rules and regulations under the Securities
Act of 1933, as amended (the "Securities Act"), based on the average of the
high and low sale prices for a share of Common Stock on the Nasdaq Stock
Market on July 27, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I
of Form S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Peak International Limited (the "Registrant" or the "Company")
hereby files this Registration Statement with the Securities and Exchange
Commission (the "Commission") on Form S-8 to register 860,000 shares of the
Registrant's Common Stock, par value US$0.01 per share ("Common Stock"), for
issuance pursuant to the Company's 1998 Share Option Plan and 1998 Employee
Stock Purchase Plan (the "Plans"), plus such indeterminate number of additional
shares which may be offered and issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions under the Plans.
Item 3. Incorporation of Documents By Reference.
The Company's annual report on Form 20-F for the year ended
March 31, 1998, filed with the Securities Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on June 12, 1998, and registration statement on Form F-1, as amended,
filed with the Commission pursuant to the Securities Act (Registration No. 333-
53925) are incorporated herein by reference.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date hereof,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document that is
or is deemed to be incorporated by reference herein modifies or supersedes such
previous statement. Any statement so modified or superseded shall not be deemed
to constitute a part of this Registration Statement, except as so modified or
superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Subject to the provisions of the Companies Act 1981 of Bermuda
and so far as may be permitted by Bermuda law, the Registrant's Bye-laws provide
that the Directors, Secretary and other officers of the Registrant shall to the
fullest extent permitted by law be indemnified and secured harmless
<PAGE>
out of the assets and profits of the Registrant from and against all actions,
costs, charges, losses, damages and expenses which they or any of them, their or
any of their heirs, executors or administrators, shall or may incur or sustain
by or by reason of any act done, concurred in or omitted in or about the
execution of their duty, or supposed duty, in their respective offices or
trusts; and none of them shall be answerable for the acts, receipts, neglects or
defaults of the other or others of them or for joining in any receipts for the
sake of conformity, or for any bankers or other persons with whom any moneys or
effects belonging to the Registrant shall or may be lodged or deposited for safe
custody, or for insufficiency or deficiency of any security upon which any
moneys of or belonging to the Registrant shall be placed out on or invested, or
for any other loss, misfortune or damage which may happen in the execution of
their respective offices or trusts, or in relation thereto; provided that such
indemnity shall not extend to any matter in respect of any fraud or dishonesty
which may attach to any of said persons.
The Registrant has obtained an insurance policy which provides
liability coverage, including coverage for liabilities arising under U.S.
federal securities laws, for directors and officers and which contains certain
exceptions and exclusions.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Memorandum of Association of the Company (filed as Exhibit
3.1 to the Company's registration statement on Form F-1
(File No. 333-6652) and incorporated herein by reference).
4.2 Bye-Laws of the Company (filed as Exhibit 3.1 to the Company's
registration statement on Form F-1 (File No. 333-6652) and
incorporated herein by reference).
4.3 1998 Share Option Plan.
4.4 1998 Employee Stock Purchase Plan.
5.1 Opinion of Conyers Dill & Pearman, Bermuda counsel to the
Company, as to the legality of the securities being
registered.
23.1 Consent of Deloitte Touche Tohmatsu.
23.2 Consent of BDO Binder.
23.3 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
23.4 Consent of Richards Butler
24.1 Power of Attorney.
Item 9. Required 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:
2
<PAGE>
(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 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 the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high and of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in this Registration Statement; and
(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 this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
- -------- -------
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 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; 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
purposes 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 (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 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
3
<PAGE>
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Hong Kong, on July 28, 1998.
PEAK INTERNATIONAL LIMITED
By: /s/ JERRY MO
--------------------------------
Jerry Mo
Principal Financial Officer and Controller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on July 28, 1998, by the following
persons in the capacities indicated.
Signature Title
--------- -----
/s/ T.L. LI *
- -----------------------------
T.L. Li Chairman of the Board and Principal
Executive Officer
/s/ ROBIN NICHOLSON *
- -----------------------------
Robin Nicholson Director
/s/ FRANCIS LEUNG *
- -----------------------------
Francis Leung Director
/s/ HON YING NG *
- -----------------------------
Hon Ying Ng Director
/s/ KONG CHI WONG *
- -----------------------------
Kong Chi Wong Director
/s/ RICHARD M. BROOK *
- -----------------------------
Richard M. Brook President and Principal Operating
Officer; Director
/s/ JERRY MO
- -----------------------------
Jerry Mo Principal Financial Officer and
Principal Accounting Officer; Director
*By:
/s/ JERRY MO
- -----------------------------
Name: Jerry Mo
Attorney-in-fact
5
<PAGE>
SIGNATURES OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act of 1933, as amended, the undersigned, the duly
authorized representative in the United States of Peak International Limited,
has signed this Registration Statement in Austin, Texas on July 28, 1998.
PEAK INTERNATIONAL, INC.
By: /s/ Richard M. Brook
--------------------------
Richard M. Brook
President
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
4.1 Memorandum of Association of the Company (filed as Exhibit
3.1 to the Company's registration statement on Form F-1
(File No. 333-6652) and incorporated herein by reference).
4.2 Bye-Laws of the Company (filed as Exhibit 3.1 to the
Company's registration statement on Form F-1 (File No.
333-6652) and incorporated herein by reference).
4.3 1998 Share Option Plan.
4.4 1998 Employee Stock Purchase Plan.
5.1 Opinion of Conyers Dill & Pearman, Bermuda counsel to the
Registrant, as to the legality of the securities being
registered.
23.1 Consent of Deloitte Touche Tohmatsu.
23.2 Consent of BDO Binder.
23.3 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
23.4 Consent of Richards Butler
24.1 Power of Attorney.
</TABLE>
<PAGE>
Exhibit 4.3
PEAK INTERNATIONAL LIMITED
1998 SHARE OPTION PLAN
SECTION 1. Purpose. The purposes of the Peak International Limited 1998
Share Option Plan are to promote the interests of the Company and its
shareholders by (i) attracting and retaining directors of the Company and
exceptional executive and other key employees of, and advisors and consultants
to, and agents and subcontractors of, the Company and its Affiliates, (ii)
motivating such persons by means of performance-related incentives to achieve
longer-range performance goals and (iii) enabling such persons to participate
in the long-term growth and financial success of the Company.
SECTION 2. Definitions. As used in the Plan, the following terms shall have
the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by the Company, (ii) any entity in which the Company has a
significant equity interest and (iii) any entity controlling or under common
control with the Company, in any case as determined by the Committee.
"Award" shall mean any award of Options granted pursuant to this Plan.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the board of directors of the Company.
"Code" shall mean the Internal Revenue Code of 1996, as amended from time to
time, or any successor statute.
"Committee" shall mean the Compensation Committee of the Board.
"Company" shall mean Peak International Limited, together with any successor
thereto.
"Director" shall mean an individual who serves as a member of the Board.
"Employee" shall mean (i) any employee of the Company or of any Affiliate or
(ii) any advisor or consultant to the Company or any Affiliate.
"Exchange Act" shall mean the United States Securities Exchange Act of 1934,
as amended.
"Fair Market Value"shall mean, except as otherwise provided in the
applicable Award Agreement, (i) in the case of a Share, the average of the
highest and lowest trading prices on the Nasdaq National Market on the
applicable date or, if such date is a day on which the Nasdaq National Market
is closed, the average of the high and low trading prices on the most recently
preceding day on which the Nasdaq National Market was open and (ii) in the
case of any other property or item the fair market value of the property or
other item being valued, as determined by the Committee in its sole and
absolute discretion.
"Incentive Stock Option" shall mean a right to subscribe for Shares from the
Company that is granted under Section 6 of the Plan and that is intended to
meet the requirements of Section 422 of the Code or any successor provision
thereto.
"Non-Qualified Stock Option" shall mean a right to subscribe Shares from the
Company that is granted under Section 6 of the Plan and that is not intended
to be an Incentive Stock Option.
"Option" shall mean a right to subscribe for Shares from the Company that is
granted under Section 6 of the Plan.
1
<PAGE>
"Participant" shall mean any Director or Employee selected by the Committee
to receive an Award under the Plan.
"Person" shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, government or
political subdivision thereof or other entity.
"Plan" shall mean this Peak International Limited 1998 Share Option Plan.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by the SEC
under the Exchange Act, or any successor rule or regulation thereto as in
effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any successor
thereto and shall include the staff thereof.
"Section 162(m)" shall mean Section 162(m) of the Code, as amended from time
to time.
"Shares" shall mean ordinary shares, U.S. $0.01 par value, of the Company,
or such other securities of the Company as may be designated by the Committee
from time to time.
SECTION 3. Administration.
(a) Authority of Committee. The Plan shall be administered by the Committee.
Subject to the terms of the Plan and applicable law, and in addition to other
express powers and authorizations conferred on the Committee by the Plan, the
Committee shall have full power and authority on behalf of the Company to: (i)
designate Participants; (ii) determine the number of Shares to be the subject
of an Award; (iii) determine the terms and conditions of any Award; (iv)
determine whether, to what extent, and under what circumstances Awards may be
settled in (or exercised for) cash, other securities or other property, or
cancelled, forfeited, or suspended and the method or methods by which Awards
may be settled, exercised, cancelled, forfeited, or suspended; (v) determine
whether, to what extent, and under what circumstances cash, Shares, other
securities, other property, and other amounts payable with respect to an Award
shall be deferred either automatically or at the election of the holder
thereof or of the Committee; (vi) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan; (vii)
establish, amend, suspend, or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of the
Plan; (viii) determine whether and to what extent Awards should comply or
continue to comply with any rule or requirement such as Rule 16b-3 or Section
162(m); and (ix) make any other determination and take any other action that
the Committee deems necessary or desirable for the administration of the Plan.
(b) Committee Discretion Binding. Unless otherwise expressly provided in the
Plan, all designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the sole and
absolute discretion of the Committee, may be made at any time and shall be
final, conclusive, and binding upon all Persons, including the Company, any
Affiliate, any Participant, any holder or beneficiary of any Award, any
shareholder of the Company and any Director or Employee and any personal
representative, heir, legatee, successor and assigns permitted hereunder of
any of the foregoing.
SECTION 4. Shares Available for Awards.
(a) Shares Available. Subject to adjustment as provided in Section 4(b), the
number of Shares with respect to which Awards may be granted under the Plan
shall be 700,000. If, after the effective date of the Plan, any Shares which
are the subject of an Award granted under the Plan, or to which such an Award
relates, are forfeited, or if such an Award is settled for cash or otherwise
terminates or is cancelled without the issue of Shares, then the Shares which
are the subject of such Award, or to which such Award relates, or the number
of Shares otherwise counted against the aggregate number of Shares with
respect to which Awards may be granted, to the extent of any such settlement,
forfeiture, termination or cancellation, shall, in the calendar year in which
2
<PAGE>
such settlement, forfeiture, termination or cancellation occurs, again become
Shares with respect to which Awards may be granted. No Participant may receive
Awards under the Plan in any calendar year that relate to more than 150,000
Shares.
(b) Adjustments. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property) or any alteration in the capital structure of
the Company, including but not limited to any recapitalization, stock split,
subdivision, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, or exchange of Shares or other securities of
the Company, issuance of warrants or other rights to subscribe for or acquire
Shares or other securities of the Company, or other similar corporate
transaction or event affects the Shares such that an adjustment is determined
by the Committee to be appropriate in order to prevent dilution or enlargement
of the benefits or potential benefits intended to be made available under the
Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number of Shares or other securities of the
Company (or number and kind of other securities or property) with respect to
which Awards may be granted, (ii) the number of Shares or other securities of
the Company (or number and kind of other securities or property) which are the
subject of outstanding Awards, and (iii) the grant or exercise price with
respect to any Award, or, if deemed appropriate by the Committee, make
provision for a cash payment to the holder of an outstanding Award; provided
that, no adjustment to the grant or exercise price of an Award shall be made
which would result in an exercise or grant price of less than the par value of
a Share. Upon any adjustment required to be made pursuant to this sub-section,
the Company shall notify the Participant (or his duly appointed personal
representatives where applicable) in writing and deliver to him (or his duly
appointed personal representatives where applicable) a statement setting forth
the exercise or grant price thereafter in effect and the nominal value, class
and/or number of Shares thereafter to be issued on the exercise of the Option.
Any adjustment shall take effect upon such written notification being given.
(c) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award shall consist of authorized and issued Shares. The
Company shall keep available sufficient authorised but unissued Shares
available for issuance to satisfy the full exercise of all Options which at
any time are capable of being exercised.
SECTION 5. Eligibility. Any Director and Employee shall be eligible to be
designated a Participant.
SECTION 6. Share Options.
(a) Grant. Subject to the provisions of this Plan, the Committee shall have
sole, absolute and complete authority to determine the Directors or the
Employees to whom Options shall be granted, the number of Shares to which each
Option relates and the conditions and limitations applicable to the exercise
of any Option. The Committee shall have the authority to grant Incentive Stock
Options, or to grant Non-Qualified Stock Options, or to grant both types of
options. In the case of Incentive Stock Options, the terms and conditions of
such grants shall be subject to and comply with such rules as may be
prescribed by Section 422 of the Code, as from time to time amended, and any
regulations implementing such statute.
(b) Exercise Price. The Committee in its sole and absolute discretion shall
establish the exercise price at the time each Option is granted which in any
event shall not be less than the par value of a Share and provided that no
Option which is intended to be an Incentive Stock Option may have an exercise
price that is less than the Fair Market Value of the underlying Shares on the
date of grant of such Option.
(c) Exercise. Each Option shall be exercisable at such times and subject to
such terms and conditions as the Committee may, in its sole and absolute
discretion, specify in the applicable Award Agreement or thereafter. The
Committee may impose such conditions with respect to the exercise of Options,
including without limitation, any relating to the application of United States
federal or state securities laws, as it may deem necessary or advisable.
(d) Payment. No Shares shall be issued pursuant to any exercise of an Option
until payment in full of the exercise price for the Shares in respect of which
the Option is being exercised is received by the Company or provision for such
payment has been made in a manner satisfactory to the Committee. Such payment
shall be made in cash in the currency required by the Committee.
3
<PAGE>
SECTION 7. Termination or Suspension of Employment. The following provisions
shall apply in the event of the Participant's termination of employment unless
the Committee shall have provided otherwise, either at the time of the grant
of the Award or thereafter.
(a) Termination of Employment. If the Participant's employment with the
Company or its Affiliates or his appointment as a Director is terminated for
any reason other than death or permanent and total disability, the Participant
shall have the right to exercise any Option following such termination of
employment or appointment and prior to the date which falls 90 days after the
date of such termination of employment or appointment to the extent such
Option was exercisable at the date of such termination of employment or
appointment and shall not have been exercised. But in no event shall such
Option be exercisable later than the expiration date for such Option set forth
in the Award Agreement.
(b) Death or Disability. If the Participant's employment with the Company or
its Affiliates or the Participant's appointment as a Director is terminated by
reason of death or permanent and total disability, the unvested portion of the
Option shall terminate and expire on the date of such termination of
employment and the Participant's successor, in the case of the Participant's
death, or otherwise the Participant shall have the right to exercise any
Option following such termination of employment or appointment to the extent
it was exercisable at the date of such termination of employment or
appointment and shall not have been exercised, but in no event shall such
Option be exercisable later than the expiration date for the Option set forth
in the Award Agreement.
(c) Acceleration and Extension of Exercisability. Notwithstanding the
foregoing, the Committee may, in its sole and absolute discretion, provide (A)
that an Option granted to a Participant may terminate following a termination
of employment or appointment at a date earlier than that set forth above, (B)
that an Option granted to a Participant may terminate at a date later than
that set forth above, provided such date shall not be beyond the date the
Option would have expired had it not been for the termination of the
Participant's employment or appointment and (C) that an Option may become
immediately exercisable when it determines that any of the foregoing would be
in the best interests of the Company.
SECTION 8. Amendment and Termination.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without shareholder approval if such approval is
necessary to comply with any tax or regulatory requirement or other applicable
law or regulation, for which or with which the Board deems it necessary or
desirable to qualify or comply. Notwithstanding anything to the contrary
herein, the Committee may amend the Plan in such manner as may be necessary so
as to have the Plan conform with local rules and regulations in any
jurisdiction.
(b) Amendments to Awards. The Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
number of Shares which are the subject of any Award or the amount payable by a
Participant upon exercise of any granted Option shall not be effective without
the consent of the affected Participant.
(c) Cancellation. Any provision of this Plan or any Award Agreement to the
contrary notwithstanding, the Committee may cause any Award granted hereunder
to be cancelled in consideration of a cash payment or alternative Award made
to the holder of such cancelled Award equal in value to the Fair Market Value
as at the original date of grant of such cancelled Award.
SECTION 9. General Provisions.
(a) Nontransferability. No Award or Option granted hereunder shall be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant, in whole or in part, except pursuant to a validly
made will of the Participant or the laws of inheritance of property.
4
<PAGE>
(b) No Rights to Awards. No Director, Employee, Participant or other Person
shall have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Directors, Employees, Participants, or holders or
beneficiaries of Awards. The terms and conditions of Awards need not be the
same with respect to each recipient.
(c) Share Certificates. All Shares or other securities of the Company issued
under the Plan pursuant to any Award or the exercise thereof shall be subject
to such stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other requirements of
the SEC, any stock exchange upon which such Shares or other securities of the
Company are then listed, and any applicable law, including without limitation
any United States Federal or state law and the Committee may cause a legend or
legends to be put on any such certificates relative to such Shares or other
securities to make appropriate reference to such restrictions.
(d) Delegation. Subject to the terms of the Plan and any applicable law, the
Committee may delegate to one or more officers or managers of the Company or
any Affiliate, or to a committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee shall determine, to
grant Awards to, or to cancel, modify or waive rights with respect to, or to
alter, discontinue, suspend, or terminate Awards held by, Participants other
than Directors.
(e) Taxes and Withholding. All taxes (including income tax) arising from the
exercise of any Option granted to any Participant under the Plan shall be
borne by that Participant. A participant may be required to pay to the Company
or any Affiliate and the Company or any Affiliate shall have the right and is
hereby authorized to withhold from any Award, from any payment due or transfer
made under any Award or under the Plan or from any compensation or other
amount owing to a Participant the amount (in cash, other securities, other
Awards or other property) of any applicable withholding taxes in respect of an
Award, its exercise, or any payment or transfer under an Award or under the
Plan and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes.
(f) Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement which shall be delivered to the Participant and shall specify the
terms and conditions of the Award and any rules applicable thereto.
(g) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other compensation arrangements, which may, but need not, provide for
the grant of options, restricted stock, Shares and other types of Awards
provided for hereunder (subject to shareholder approval if such approval is
required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability or any claim under the
Plan or any Award and Options granted thereunder. The terms of employment of a
Participant shall not be affected by his participation in the Plan, which
shall neither form part of such terms nor entitle him to take into account
such participation in calculating any compensation or damages on the
termination of his employment for any reason.
(i) No Rights as Shareholder. Subject to the provisions of the applicable
Award, no Participant or holder or beneficiary of any Award shall have any
rights as a shareholder with respect to any Shares to be distributed under the
Plan until he or she has become the registered holder of such Shares. Shares
allotted and issued on exercise of an Option shall be subject to all
provisions of the memorandum of association and bye-laws of the Company, and
shall rank in full for all entitlements, including dividends or other
distributions declared or recommended in respect of the then existing Shares,
the Record Date for which is on or after the relevant date upon which such
exercise occurred, and shall in all other respects rank pari passu with other
existing Shares then issued and outstanding. For the purpose of this sub-
Section, the term "Record Date" means the date fixed by the Company for the
purposes of determining entitlements to dividends or other distributions to or
rights of holders of Shares.
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(j) Governing Law. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of Hong Kong (except to the extent
that the laws of Bermuda are applicable to the Company).
(k) Severability. If any provision of the Plan or any Award is or becomes or
is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as
to any Person or Award, or would disqualify the Plan or any Award under any
law deemed applicable by the Committee, such provision shall be construed or
deemed amended to such minimum extent as is necessary to comply with the
applicable laws, or if it cannot be construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan
or the Award, such provision shall be deleted as to such jurisdiction, Person
or Award and the remainder of the Plan and any such Award shall remain in full
force and effect.
(l) Other Laws. The Committee may refuse to issue any Shares or any other
securities or other consideration, or transfer any issued Shares, any other
securities or other consideration under an Award if, acting in its sole
discretion, it determines that the issuance or transfer of such Shares, other
securities or other consideration might violate any applicable law or
regulation or entitle the Company to recover under Section 16(b) of the
Exchange Act, and any payment tendered to the Company by a Participant, other
holder or beneficiary in connection with the exercise of such Award shall be
promptly refunded to the relevant Participant, holder or beneficiary. Without
limiting the generality of the foregoing, no Award granted hereunder shall be
construed as an offer to acquire or to sell Shares or other securities of the
Company, and no such offer shall be outstanding, unless and until the
Committee in its sole discretion has determined that any such offer, if made,
would be in compliance with all applicable requirements of the U.S. Federal
securities laws and any other laws to which such offer, if made, would be
subject.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall create or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any
other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(n) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether
cash, other securities, or other property shall be paid or transferred in lieu
of any fractional Shares or whether such fractional Shares or any rights
thereto shall be cancelled, terminated, or otherwise eliminated.
(o) Disclaimer of Liability. Notwithstanding any provisions herein
contained, the Committee and the Company shall not under any circumstances be
held liable for any cost, losses, expenses and damages whatsoever and
howsoever arising in any event, including but not limited to the Company's
delay in issuing the Shares following the exercise of any Option.
(p) Headings. Headings are given to the Sections and subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation
of the Plan or any provision thereof.
SECTION 10. Term of the Plan.
(a) Effective Date. The Plan shall be effective as of 27 July 1998.
(b) Expiration Date. Subject to the succeeding sentence, no Award may be
granted under the Plan after 27 July 2008. Unless otherwise expressly provided
in the Plan or in an applicable Award Agreement, any Award granted hereunder
may, and the authority of the Board or the Committee to amend, alter, adjust,
suspend, discontinue or terminate any such Award or to waive any conditions or
rights under any such Award shall, continue after the authority for grant of
new Awards hereunder has been exhausted.
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Exhibit 4.4
PEAK INTERNATIONAL LIMITED
1998 EMPLOYEE STOCK PURCHASE PLAN
(AS ADOPTED EFFECTIVE JULY 27, 1998)
1
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1. PURPOSE OF THE PLAN............................................. 4
SECTION 2. ADMINISTRATION OF THE PLAN...................................... 4
(a) Committee Composition................................................ 4
(b) Committee Responsibilities........................................... 4
SECTION 3. ENROLLMENT AND PARTICIPATION.................................... 4
(a) Offering Periods..................................................... 4
(b) Accumulation Periods................................................. 4
(c) Enrollment........................................................... 4
(d) Duration of Participation............................................ 4
(e) Applicable Offering Period........................................... 4
SECTION 4. EMPLOYEE CONTRIBUTIONS.......................................... 5
(a) Frequency of Payroll Deductions...................................... 5
(b) Amount of Payroll Deductions......................................... 5
(c) Changing Withholding Rate............................................ 5
(d) Discontinuing Payroll Deductions..................................... 5
(e) Limit on Number of Elections......................................... 5
SECTION 5. WITHDRAWAL FROM THE PLAN........................................ 5
(a) Withdrawal........................................................... 5
(b) Re-Enrollment After Withdrawal....................................... 5
SECTION 6. CHANGE IN EMPLOYMENT STATUS..................................... 5
(a) Termination of Employment............................................ 5
(b) Leave of Absence..................................................... 6
(c) Death................................................................ 6
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES............................ 6
(a) Plan Accounts........................................................ 6
(b) Purchase Price....................................................... 6
(c) Number of Shares Purchased........................................... 6
(d) Available Shares Insufficient........................................ 6
(e) Issuance of Stock.................................................... 6
(f) Unused Cash Balances................................................. 7
(g) Stockholder Approval................................................. 7
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP.................................. 7
(a) Five Percent Limit................................................... 7
(b) Dollar Limit......................................................... 7
SECTION 9. RIGHTS NOT TRANSFERABLE......................................... 8
SECTION 10. NO RIGHTS AS AN EMPLOYEE....................................... 8
SECTION 11. NO RIGHTS AS A STOCKHOLDER..................................... 8
SECTION 12. SECURITIES LAW REQUIREMENTS.................................... 8
</TABLE>
2
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<TABLE>
<S> <C>
SECTION 13. STOCK OFFERED UNDER THE PLAN.................................... 8
(a) Authorized Shares..................................................... 8
(b) Anti-Dilution Adjustments............................................. 8
(c) Reorganizations....................................................... 8
SECTION 14. AMENDMENT OR DISCONTINUANCE..................................... 9
SECTION 15. DEFINITIONS..................................................... 9
(a) Accumulation Period................................................... 9
(b) Board................................................................. 9
(c) Change in Control..................................................... 9
(d) Code.................................................................. 9
(e) Committee............................................................. 9
(f) Company............................................................... 9
(g) Compensation.......................................................... 9
(h) Eligible Employee..................................................... 9
(i) Exchange Act.......................................................... 10
(j) Fair Market Value..................................................... 10
(k) Offering Period....................................................... 10
(l) Participant........................................................... 10
(m) Participating Company................................................. 10
(n) Plan.................................................................. 10
(o) Plan Account.......................................................... 10
(p) Purchase Price........................................................ 10
(q) Stock................................................................. 10
(r) Subsidiary............................................................ 10
SECTION 16. EXECUTION....................................................... 11
</TABLE>
3
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PEAK INTERNATIONAL LIMITED
1998 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE OF THE PLAN.
The Plan was approved by the shareholders of the Company on July 27, 1998,
effective as of July 27, 1998. The purpose of the Plan is to provide Eligible
Employees with an opportunity to increase their proprietary interest in the
success of the Company by purchasing Stock from the Company on favorable terms
and to pay for such purchases through payroll deductions. The Plan is intended
to qualify under section 423 of the Code.
SECTION 2. ADMINISTRATION OF THE PLAN.
(a)Committee Composition. The Plan shall be administered by the Compensation
Committee ("the Committee") which was established by of the Board of
Directors.
(b)Committee Responsibilities. The Committee shall interpret the Plan and
make all other policy decisions relating to the operation of the Plan. The
Committee may adopt such rules, guidelines and forms as it deems appropriate
to implement the Plan. The Committee's determinations under the Plan shall be
final and binding on all persons.
SECTION 3. ENROLLMENT AND PARTICIPATION.
(a)Offering Periods. While the Plan is in effect, two overlapping Offering
Periods shall commence in each calendar year. The Offering Periods shall
consist of the 24-month periods commencing on October 1 and April 1.
(b)Accumulation Periods. While the Plan is in effect, two Accumulation
Periods shall commence in each calendar year. The Accumulation Periods shall
consist of the six-month periods commencing on October 1 and April 1.
(c)Enrollment. Any individual who, on the day preceding the first day of an
Offering Period, qualifies as an Eligible Employee may elect to become a
Participant in the Plan for such Offering Period by executing the enrollment
form prescribed for this purpose by the Committee. The enrollment form shall
be filed with the Company at the prescribed location not later than 30 days
prior to the commencement of such Offering Period.
(d)Duration of Participation. Once enrolled in the Plan, a Participant shall
continue to participate in the Plan until he or she ceases to be an Eligible
Employee, withdraws from the Plan under Section 5(a) or reaches the end of the
Accumulation Period in which his or her employee contributions were
discontinued under Section 4(d) or 8(b). A Participant who discontinued
employee contributions under Section 4(d) or withdrew from the Plan under
Section 5(a) may again become a Participant, if he or she then is an Eligible
Employee, by following the procedure described in Subsection (c) above. A
Participant whose employee contributions were discontinued automatically under
Section 8(b) shall automatically resume participation at the beginning of the
earliest Accumulation Period ending in the next calendar year, if he or she
then is an Eligible Employee.
(e)Applicable Offering Period. For purposes of calculating the Purchase
Price under Section 7(b), the applicable Offering Period shall be determined
as follows:
(i)Once a Participant is enrolled in the Plan for an Offering Period,
such Offering Period shall continue to apply to him or her until the
earliest of (A) the end of such Offering Period, (B) the end of his or
her participation under Subsection (d) above or (C) re-enrollment in a
subsequent Offering Period under Paragraph (ii) below.
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(ii)In the event that the Fair Market Value of Stock on the last
trading day before the commencement of the Offering Period in which the
Participant is enrolled is higher than on the last trading day before
the commencement of any subsequent Offering Period, the Participant
shall automatically be re-enrolled for such subsequent Offering Period.
(iii)When a Participant reaches the end of an Offering Period but his
or her participation is to continue, then such Participant shall
automatically be re-enrolled for the Offering Period that commences
immediately after the end of the prior Offering Period.
SECTION 4. EMPLOYEE CONTRIBUTIONS.
(a)Frequency of Payroll Deductions. A Participant may purchase shares of
Stock under the Plan solely by means of payroll deductions. Payroll
deductions, as designated by the Participant pursuant to Subsection (b) below,
shall occur on each payday during participation in the Plan.
(b)Amount of Payroll Deductions. An Eligible Employee shall designate on the
enrollment form the portion of his or her Compensation that he or she elects
to have withheld for the purchase of Stock. Such portion shall be a whole
percentage of the Eligible Employee's Compensation, but not less than 1% nor
more than 20%.
(c)Changing Withholding Rate. If a Participant wishes to change the rate of
payroll withholding, he or she may do so by filing a new enrollment form with
the Company at the prescribed location at any time. The new withholding rate
shall be effective as soon as reasonably practicable after such form has been
received by the Company. The new withholding rate shall be a whole percentage
of the Eligible Employee's Compensation, but not less than 1% nor more than
20%.
(d)Discontinuing Payroll Deductions. If a Participant wishes to discontinue
employee contributions entirely, he or she may do so by filing a new
enrollment form with the Company at the prescribed location at any time.
Payroll withholding shall cease as soon as reasonably practicable after such
form has been received by the Company. (In addition, employee contributions
may be discontinued automatically pursuant to Section 8(b).) A Participant who
has discontinued employee contributions may resume such contributions by
filing a new enrollment form with the Company at the prescribed location.
Payroll withholding shall resume as soon as reasonably practicable after such
form has been received by the Company.
(e)Limit on Number of Elections. No Participant shall make more than 2
elections under Subsection (c) or (d) above during any Accumulation Period.
SECTION 5. WITHDRAWAL FROM THE PLAN.
(a)Withdrawal. A Participant may elect to withdraw from the Plan by filing
the prescribed form with the Company at the prescribed location at any time
before the last day of an Accumulation Period. As soon as reasonably
practicable thereafter, payroll deductions shall cease and the entire amount
credited to the Participant's Plan Account shall be refunded to him or her in
cash, without interest. No partial withdrawals shall be permitted.
(b)Re-Enrollment After Withdrawal. A former Participant who has withdrawn
from the Plan shall not be a Participant until he or she re-enrolls in the
Plan under Section 3(c). Re-enrollment may be effective only at the
commencement of an Offering Period.
SECTION 6. CHANGE IN EMPLOYMENT STATUS.
(a)Termination of Employment. Termination of employment as an Eligible
Employee for any reason, including death, shall be treated as an automatic
withdrawal from the Plan under Section 5(a). (A transfer from one
Participating Company to another shall not be treated as a termination of
employment.)
5
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(b)Leave of Absence. For purposes of the Plan, employment shall not be
deemed to terminate when the Participant goes on a military leave, a sick
leave or another bona fide leave of absence, if the leave was approved by the
Company in writing. Employment, however, shall be deemed to terminate 90 days
after the Participant goes on a leave, unless a contract or statute guarantees
his or her right to return to work. Employment shall be deemed to terminate in
any event when the approved leave ends, unless the Participant immediately
returns to work.
(c)Death. In the event of the Participant's death, the amount credited to
his or her Plan Account shall be paid to a beneficiary designated by him or
her for this purpose on the prescribed form or, if none, to the Participant's
estate. Such form shall be valid only if it was filed with the Company at the
prescribed location before the Participant's death.
SECTION 7. PLAN ACCOUNTS AND PURCHASE OF SHARES.
(a)Plan Accounts. The Company shall maintain a Plan Account on its books in
the name of each Participant. Whenever an amount is deducted from the
Participant's Compensation under the Plan, such amount shall be credited to
the Participant's Plan Account. Amounts credited to Plan Accounts shall not be
trust funds and may be commingled with the Company's general assets and
applied to general corporate purposes. No interest shall be credited to Plan
Accounts.
(b)Purchase Price. The Purchase Price for each share of Stock purchased at
the close of an Accumulation Period shall be the lower of:
(i)85% of the Fair Market Value of such share on the last trading day
in such Accumulation Period; or
(ii)85% of the Fair Market Value of such share on the last trading
day before the commencement of the applicable Offering Period (as
determined under Section 3(e)) but in any event shall not be less than
the par value of the shares of the Company.
(c)Number of Shares Purchased. As of the last day of each Accumulation
Period, each Participant shall be deemed to have elected to purchase the
number of shares of Stock calculated in accordance with this Subsection (c),
unless the Participant has previously elected to withdraw from the Plan in
accordance with Section 5(a). The amount then in the Participant's Plan
Account shall be divided by the Purchase Price, and the number of shares that
results shall be purchased from the Company with the funds in the
Participant's Plan Account. The foregoing notwithstanding, no Participant
shall purchase more than 5000 shares of Stock with respect to any Accumulation
Period nor more than the amounts of Stock set forth in Sections 8(b) and
13(a). The Committee may determine with respect to all Participants that any
fractional share, as calculated under this Subsection (c), shall be (i)
rounded down to the next lower whole share or (ii) credited as a fractional
share.
(d)Available Shares Insufficient. In the event that the aggregate number of
shares that all Participants elect to purchase during an Accumulation Period
exceeds the maximum number of shares remaining available for issuance under
Section 13(a), then the number of shares to which each Participant is entitled
shall be determined by multiplying the number of shares available for issuance
by a fraction, the numerator of which is the number of shares that such
Participant has elected to purchase and the denominator of which is the number
of shares that all Participants have elected to purchase.
(e)Issuance of Stock. Certificates representing the shares of Stock
purchased by a Participant under the Plan shall be issued to him or her as
soon as reasonably practicable after the close of the applicable Accumulation
Period, except that the Committee may determine that such shares shall be held
for each Participant's benefit by a broker designated by the Committee (unless
the Participant has elected that certificates be issued to him or her). Shares
may be registered in the name of the Participant or jointly in the name of the
Participant and his or her spouse as joint tenants with right of survivorship
or as community property.
6
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(f)Unused Cash Balances. An amount remaining in the Participant's Plan
Account that represents the Purchase Price for any fractional share shall be
carried over in the Participant's Plan Account to the next Accumulation
Period. Any amount remaining in the Participant's Plan Account that represents
the Purchase Price for whole shares that could not be purchased by reason of
Subsection (c) above, Section 8(b) or Section 13(a) shall be refunded to the
Participant in cash, without interest.
(g)Stockholder Approval. Any other provision of the Plan notwithstanding, no
shares of Stock shall be purchased under the Plan unless and until the
Company's stockholders have approved the adoption of the Plan.
SECTION 8. LIMITATIONS ON STOCK OWNERSHIP.
(a)Five Percent Limit. Any other provision of the Plan notwithstanding, no
Participant shall be granted a right to purchase Stock under the Plan if such
Participant, immediately after his or her election to purchase such Stock,
would own stock possessing more than 5% of the total combined voting power or
value of all classes of stock of the Company or any parent or Subsidiary of
the Company. For purposes of this Subsection (a), the following rules shall
apply:
(i)Ownership of stock shall be determined after applying the
attribution rules of section 424(d) of the Code;
(ii)Each Participant shall be deemed to own any stock that he or she
has a right or option to purchase under this or any other plan; and
(iii)Each Participant shall be deemed to have the right to purchase
5000 shares of Stock under this Plan with respect to each Accumulation
Period.
(b)Dollar Limit. Any other provision of the Plan notwithstanding, no
Participant shall purchase Stock with a Fair Market Value in excess of the
following limit:
(i)In the case of Stock purchased during an Offering Period that
commenced in the current calendar year, the limit shall be equal to (A)
$25,000 minus (B) the Fair Market Value of the Stock that the
Participant previously purchased in the current calendar year (under
this Plan and all other employee stock purchase plans of the Company or
any parent or Subsidiary of the Company).
(ii)In the case of Stock purchased during an Offering Period that
commenced in the immediately preceding calendar year, the limit shall
be equal to (A) $50,000 minus (B) the Fair Market Value of the Stock
that the Participant previously purchased (under this Plan and all
other employee stock purchase plans of the Company or any parent or
Subsidiary of the Company) in the current calendar year and in the
immediately preceding calendar year.
(iii)In the case of Stock purchased during an Offering Period that
commenced in the second preceding calendar year, the limit shall be
equal to (A) $75,000 minus (B) the Fair Market Value of the Stock that
the Participant previously purchased (under this Plan and all other
employee stock purchase plans of the Company or any parent or
Subsidiary of the Company) in the current calendar year and in the two
preceding calendar years.
For purposes of this Subsection (b), the Fair Market Value of Stock shall be
determined in each case as of the beginning of the Offering Period in which
such Stock is purchased. Employee stock purchase plans not described in
section 423 of the Code shall be disregarded. If a Participant is precluded by
this Subsection (b) from purchasing additional Stock under the Plan, then his
or her employee contributions shall automatically be discontinued and shall
resume at the beginning of the earliest Accumulation Period ending in the next
calendar year (if he or she then is an Eligible Employee).
7
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SECTION 9. RIGHTS NOT TRANSFERABLE.
The rights of any Participant under the Plan, or any Participant's interest
in any Stock or moneys to which he or she may be entitled under the Plan,
shall not be transferable by voluntary or involuntary assignment or by
operation of law, or in any other manner other than by beneficiary designation
or the laws of descent and distribution. If a Participant in any manner
attempts to transfer, assign or otherwise encumber his or her rights or
interest under the Plan, other than by beneficiary designation or the laws of
descent and distribution, then such act shall be treated as an election by the
Participant to withdraw from the Plan under Section 5(a).
SECTION 10. NO RIGHTS AS AN EMPLOYEE.
Nothing in the Plan or in any right granted under the Plan shall confer upon
the Participant any right to continue in the employ of a Participating Company
for any period of specific duration or interfere with or otherwise restrict in
any way the rights of the Participating Companies or of the Participant, which
rights are hereby expressly reserved by each, to terminate his or her
employment at any time and for any reason, with or without cause.
SECTION 11. NO RIGHTS AS A STOCKHOLDER.
A Participant shall have no rights as a stockholder with respect to any
shares of Stock that he or she may have a right to purchase under the Plan
until such shares have been purchased on the last day of the applicable
Accumulation Period.
SECTION 12. SECURITIES LAW REQUIREMENTS.
Shares of Stock shall not be issued under the Plan unless the issuance and
delivery of such shares comply with (or are exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of
1933, as amended, the rules and regulations promulgated thereunder, state
securities laws and regulations, and the regulations of any stock exchange or
other securities market on which the Company's securities may then be traded.
SECTION 13. STOCK OFFERED UNDER THE PLAN.
(a)Authorized Shares. The aggregate number of shares of Stock available for
purchase under the Plan shall be 160,000, subject to adjustment pursuant to
this Section 13.
(b)Anti-Dilution Adjustments. The aggregate number of shares of Stock
offered under the Plan, the 5,000-share limitation described in Section 7(c)
and the price of shares that any Participant has elected to purchase shall be
adjusted proportionately by the Committee for any increase or decrease in the
number of outstanding shares of Stock resulting from a subdivision or
consolidation of shares or the payment of a stock dividend, any other increase
or decrease in such shares effected without receipt or payment of
consideration by the Company, the distribution of the shares of a Subsidiary
to the Company's stockholders or a similar event.
(c)Reorganizations. Any other provision of the Plan notwithstanding,
immediately prior to the effective time of a Change in Control, the Offering
Period and Accumulation Period then in progress shall terminate and shares
shall be purchased pursuant to Section 7. In the event of a merger or
consolidation to which the Company is a constituent corporation and which does
not constitute a Change in Control, the Plan shall continue unless the plan of
merger or consolidation provides otherwise. The Plan shall in no event be
construed to restrict in any way the Company's right to undertake a
dissolution, liquidation, merger, consolidation or other reorganization.
8
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SECTION 14. AMENDMENT OR DISCONTINUANCE.
The Board shall have the right to amend, suspend or terminate the Plan at
any time and without notice. Except as provided in Section 13, any increase in
the aggregate number of shares of Stock to be issued under the Plan shall be
subject to approval by a vote of the stockholders of the Company. In addition,
any other amendment of the Plan shall be subject to approval by a vote of the
stockholders of the Company to the extent required by an applicable law or
regulation.
SECTION 15. DEFINITIONS.
(a)"Accumulation Period" means a six-month period during which contributions
may be made toward the purchase of Stock under the Plan, as determined
pursuant to Section3(b).
(b)"Board" means the Board of Directors of the Company, as constituted from
time to time.
(c)"Change in Control" means:
(i)The consummation of a merger or consolidation of the Company with
or into another entity or any other corporate reorganization, if more
than 50% of the combined voting power of the continuing or surviving
entity's securities outstanding immediately after such merger,
consolidation or other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such merger,
consolidation or other reorganization; or
(ii)The sale, transfer or other disposition of all or substantially
all of the Company's assets or the complete liquidation or dissolution
of the Company.
A transaction shall not constitute a Change in Control if its sole purpose
is to change the state of the Company's incorporation or to create a holding
company that will be owned in substantially the same proportions by the
persons who held the Company's securities immediately before such transaction.
(d)"Code"means the Internal Revenue Code of 1986, as amended.
(e)"Committee"means a committee of the Board, as described in Section 2.
(f)"Company"means Peak International Limited, a corporation organized under
the laws of Bermuda.
(g)"Compensation" means (i) the total compensation paid in cash to a
Participant by a Participating Company, including salaries, wages, bonuses,
incentive compensation, commissions, overtime pay and shift premiums, plus
(ii) any pre-tax contributions made by the Participant under section 401(k) or
125 of the Code. "Compensation" shall exclude all non-cash items, moving or
relocation allowances, cost-of-living equalization payments, car allowances,
tuition reimbursements, imputed income attributable to cars or life insurance,
severance pay, fringe benefits, contributions or benefits received under
employee benefit plans, income attributable to the exercise of stock options,
and similar items. The Committee shall determine whether a particular item is
included in Compensation.
(h)"Eligible Employee" means any employee of a Participating Company who
meets both of the following requirements:
(i)His or her customary employment is for more than five months per
calendar year and for more than 20 hours per week; and
(ii)He or she has been an employee of a Participating Company for not
less than 12 consecutive months.
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The foregoing notwithstanding, an individual shall not be considered an
Eligible Employee if his or her participation in the Plan is prohibited by the
law of any country which has jurisdiction over him or her or if he or she is
subject to a collective bargaining agreement that does not provide for
participation in the Plan.
(i)"Exchange Act" means the Securities Exchange Act of 1934, as amended.
(j)"Fair Market Value" means the market price of Stock, determined by the
Committee as follows:
(i)If Stock was traded over-the-counter on the date in question but
was not traded on The Nasdaq Stock Market or The Nasdaq National
Market, then the Fair Market Value shall be equal to the mean between
the last reported representative bid and asked prices quoted for such
date by the principal automated inter-dealer quotation system on which
Stock is quoted or, if the Stock is not quoted on any such system, by
the "Pink Sheets" published by the National Quotation Bureau, Inc.;
(ii)If Stock was traded over-the-counter on the date in question and
was traded on The Nasdaq Stock Market or The Nasdaq National Market,
then the Fair Market Value shall be equal to the last-transaction price
quoted for such date by The Nasdaq Stock Market or The Nasdaq National
Market;
(iii)If the Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing
price reported by the applicable composite transactions report for such
date; and
(iv)If none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on such
basis as it deems appropriate.
Whenever possible, the determination of Fair Market Value by the Committee
shall be based on the prices reported in The Wall Street Journal or as
reported directly to the Company by Nasdaq or a comparable exchange. Such
determination shall be conclusive and binding on all persons.
(k)"Offering Period" means a 24-month period with respect to which the right
to purchase Stock may be granted under the Plan, as determined pursuant to
Section 3(a).
(l)"Participant" means an Eligible Employee who elects to participate in the
Plan, as provided in Section 3(c).
(m)"Participating Company" means the Company or each present or future
Subsidiary designated by the Committee as a Participating Company.
(n)"Plan" means this Peak International Limited 1998 Employee Stock Purchase
Plan, as it may be amended from time to time.
(o)"Plan Account" means the account established for each Participant
pursuant to Section 7(a).
(p)"Purchase Price" means the price at which Participants may purchase Stock
under the Plan, as determined pursuant to Section 7(b).
(q)"Stock" means the Ordinary Shares of the Company.
(r)"Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
10
<PAGE>
SECTION 16. EXECUTION.
To record the approval of the Plan by the shareholders of the Company on July
27, 1998, the Company has caused its authorized officer to execute the same.
PEAK INTERNATIONAL LIMITED
By:
------------------------
Title:
-----------------------
11
<PAGE>
Exhibit 5.1
[LETTERHEAD OF CONYERS DILL & PEARMAN APPEARS HERE]
29 July, 1998
Peak International Limited
Units 4, 5 and 7, 37th Floor, Wharf Cable Tower
9 Hoi Shing Road
Tsuen Wan, New Territories
Hong Kong
Dear Sirs,
Peak International Limited (the "Company")
------------------------------------------
We have acted as special legal counsel in Bermuda to the Company in
connection with the preparation and filing with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-8 (the "Registration
Statement") relating to the registration under the Securities Act of up to
860,000 ordinary shares (the "Shares") with a par value of US$0.01 per Share
issuable pursuant to a share option plan (the "Option Plan") and an employee
stock purchase plan (the "Purchase Plan" and together with the Option Plan, the
"Plans") adopted by the Company at its annual general meeting (the "1998 AGM")
held on 27 July, 1998.
For the purposes of giving this opinion, we have examined the following
documents:
(i) a copy of the Plans;
(ii) a draft of the Registration Statement;
(iii) copies of the minutes of the 1998 AGM and the minutes of the meeting
of the board of directors of the Company held on 28th July, 1998;
We have also reviewed the memorandum of association and the bye-laws of the
Company and such other documents and made such enquiries as to questions of law
as we have deemed necessary in order to render the opinion set forth below.
<PAGE>
Peak International Limited
29 July, 1998
Page 2.
We have assumed (i) the genuineness and authenticity of all signatures,
stamps and seals and the conformity to the originals of all copies of documents
(whether or not certified) examined by us and the authenticity and completeness
of the originals from which such copies were taken; (ii) that the resolutions
referred to herein are full and accurate records of resolutions passed at
meetings duly convened and held in accordance with the bye-laws of the Company
and that such resolutions have not been amended or rescinded and are in full
force and effect; (iii) that there is no provision of the law of any
jurisdiction, other than Bermuda, which would have any implication in relation
to the opinions expressed herein; and (iv) the validity under the laws of the
United States of America of the Registration Statement and that the
Registration Statement has been or will be duly filed with or declared
effective by the SEC.
We have made no investigation of and express no opinion in relation to
the laws of any jurisdiction other than Bermuda. This opinion is to be governed
by and construed in accordance with the laws of Bermuda and is limited to and is
given on the basis of the current law and practice in Bermuda. Subject as
mentioned below, this opinion is issued solely for your benefit and is not to be
relied upon by any other person, firm or entity or in respect of any other
matter nor is it to be quoted or referred to in any document registered or filed
with any governmental authority or public body without our prior express consent
in writing save that this opinion may be filed as an exhibit to the Registration
Statement.
On the basis of and subject to the foregoing, we are of the opinion
that:
(1) The Company is duly incorporated and is validly existing under
the laws of Bermuda.
(2) The Shares deliverable pursuant to the Plans have been duly
authorized and, when and to the extent issued pursuant to (i)
the exercise of options and upon receipt by the Company of full
payment of the exercise price for the Shares under the Option
Plan, or (ii) the election to purchase Shares and after
deduction of the purchase price from the payroll of the
participant under the Purchase Plan, will be validly issued,
fully paid and non-assessable (meaning no further sums are
payable to the Company with respect to the Shares).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the headings
"Enforcement of Civil Liabilities", "Taxation" and "Legal Matters" in the
prospectus contained in the Company's registration statement on Form F-1 (File
No. 333-53925) incorporated by reference in the Registration
<PAGE>
Peak International Limited
29 July, 1998
Page 3
Statement. In giving such consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act, or the Rules and Regulations of the SEC thereunder.
Yours faithfully,
/s/ Conyers Dill & Pearman
Conyers Dill & Pearman
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement of
Peak International Limited (the "Company") on Form S-8 of our report dated May
7, 1998, appearing in the Annual Report on Form 20-F of the Company and of our
report also dated May 7, 1998, appearing in post-effective amendment no. 2 to
Registration Statement No. 333-53925 of the Company on Form F-1.
Yours faithfully
/s/ Deloitte Touche Tohmatsu
DELOITTE TOUCHE TOHMATSU
Hong Kong, July 30, 1998
<PAGE>
Exhibit 23.2
[LETTERHEAD OF BDO BINDER APPEARS HERE]
July 29, 1998
Board Of Directors
Peak International Limited
Re: Consent of Independent Auditors
We consent to the incorporation by reference in the Company's Registration
Statement on Form S-8 dated July 29, 1998 of our report dated March 19, 1997
relating to the consolidated financial statements of Peak International Limited
for the year ended March 31, 1996, which appears in the Company's annual report
on Form 20-F filed on June 12, 1998 and registration statement on Form F-1 (File
No. 333-53925).
/s/ BDO Binder
BDO Binder
Hong Kong
<PAGE>
Exhibit 23.4
[LETTERHEAD OF RICHARDS BUTLER APPEARS HERE]
30th July, 1998
BY HAND
- -------
Peak International Limited
Unit 4, 5 & 7
37/F, Wharf Cable Tower
9 Hoi Shing Road
Tsuen Wan
New Territories
Attn: Mr. Jerry Mo
- ------------------
Dear Sirs,
Peak International Limited - Registration Statement - Consent
- -------------------------------------------------------------
We refer to the registration statement of Peak International Limited on Form S-8
dated July 30, 1998 (the "Registration Statement").
We hereby consent to the filing of this consent as an exhibit to the
Registration Statement and to the use of our name under the captions
"Enforcement of Civil Liabilities", and "Legal Matters" in the prospectus
contained in the registration statement on Form F-1 (No. 333-53925)
incorporated by reference in the Company's Registration Statement. 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 United States Securities Act of
1933, as amended.
Yours faithfully,
/s/ Richards Butler
RICHARDS BUTLER
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Mr. Jerry Mo of Peak International Limited (the
"Company") his true and lawful attorney-in-fact and agent with full power of
substitution for him and his name, place and stead, in any and all capacities,
to take the following actions:
1. To execute in the name of such person, and to file with the United
States Securities and Exchange Commission, a Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, for
the registration of up to 860,000 shares (the "Shares") of common stock, par
value US$0.01 per share, of the Company, to be issued by the Company pursuant to
the 1998 Share Option Plan and the 1998 Employee Stock Purchase Plan (the
"Plans") and to execute and file any and all amendments or post-effective
amendments to the Registration Statement, together with such exhibits and other
documents as such person executing the same may approve.
2. To sign such applications, certificates, consents and other
documents as may be necessary or appropriate from time to time in connection
with the qualification of the Shares pursuant to the Registration Statement
under the securities or Blue Sky laws of any of the states or other relevant
laws of other jurisdictions outside the United States and to cause the same to
be filed with the securities or Blue Sky commissions of such states or other
jurisdictions or the relevant authorities in the appropriate jurisdictions
outside the United States.
3. To sign such other documents, including, such other appropriate
documents relating to the shares and the Plans, to take such other actions, and
to do such other things as said agent and attorney-in-fact may deem necessary or
appropriate from time to time in connection with the foregoing and in connection
with the issuance and sale from time to time by the Company of the Shares
pursuant to the Plans.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this power of
attorney on July 28, 1998:
/s/ T.L. Li
- -------------------------------------------------
Name: T.L. Li
Title: Chairman and Chief Executive Officer
/s/ Robin Nicholson
- -------------------------------------------------
Name: Robin Nicholson
Title: Director
/s/ Francis Leung
- -------------------------------------------------
Name: Francis Leung
Title: Director
/s/ Hon Ying Ng
- -------------------------------------------------
Name: Hon Ying Ng
Title: Director
/s/ Kong Chi Wong
- -------------------------------------------------
Name: Kong Chi Wong
Title: Director
/s/ Richard M. Brook
- -------------------------------------------------
Name: Richard M. Brook
Title: President and Chief Operating Officer, Director
/s/ Jerry Mo
- -------------------------------------------------
Name: Jerry Mo
Title: Chief Financial Officer and Controller, Director
2
