As filed with the Securities and Exchange Commission on February 15, 2000
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 None
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
Units 3, 4, 5 and 7, 37th Floor
Cable TV Tower
9 Hoi Shing Road
Tsuen Wan
N.T., Hong Kong
(Address, including zip code, of Registrant's principal executive office)
PEAK INTERNATIONAL LIMITED 1998 SHARE OPTION PLAN
(Full title of the Plan)
---------------
Jack Menache
Vice President Administration, General Counsel & Secretary
Peak International, Inc.
4073 Eagle Nest Lane
Danville, California 94506-5811
(925) 736-4521
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service)
Copies to:
Michael J. Nooney
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
---------------
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Amount Maximum Maximum
to be Offering Aggregate Amount of
Title of Securities to Registered Price Per Offering Registration
be Registered (a) Share(b) Price(b) Fee
---------------------- ---------- --------- ---------- ------------
Common Stock, par value 1,500,000 $12.875 $19,312,500 $5,098.50
US$.01 per share
(a) The shares are issuable pursuant to the Peak International Limited 1998
Share Option Plan.
(b) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), the proposed maximum offering price per share,
the proposed maximum aggregate offering price and the amount of
registration fee each have been computed based upon the average bid and
asked prices for the Registrant's Common Stock as reported on the Nasdaq
National Market on February 11, 2000.
-2-
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This Registration Statement on Form S-8 relates to the registration of
1,500,000 additional shares of Common Stock, par value US$.01 per share, of
Peak International Limited, for which a Registration Statement on Form S-8
(Registration No. 333-60161) relating to the Peak International Limited 1998
Share Option Plan (the "Form S-8, Registration No. 333-60161") is effective.
Pursuant to General Instruction E for registration statements on Form S-8,
the contents of Form S-8, Registration No. 333-60161 are incorporated herein
by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Not required to be filed with this Registration Statement pursuant to
General Instruction E for registration statements on Form S-8.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not required to be filed with this Registration Statement pursuant to
General Instruction E for registration statements on Form S-8.
Item 6. Indemnification of Directors and Officers.
Not required to be filed with this Registration Statement pursuant to
General Instruction E for registration statements on Form S-8.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. List of Exhibits.
Exhibit Description
4.1 Memorandum of Association of the Registrant (filed as
an exhibit to the Registrant's Registration Statement
on Form F-1 (File No. 333-6652) and incorporated herein
by reference)
4.2 Bye-Laws of the Registrant (filed as an exhibit to the
Registrant's Registration Statement on Form F-1 (File
No. 333-6652) and incorporated herein by reference)
4.3 Specimen of Share Certificate for the Shares of Common
Stock of the Registrant (filed as an exhibit to the
Registrant's Registration Statement on Form F-1 (File
No. 333-6652) and incorporated herein by reference)
4.4 Peak International Limited 1998 Share Option Plan*
5 Opinion of Conyers Dill & Pearson*
23.1 Consent of Deloitte Touche Tohmatsu*
23.2 Consent of BDO Binder*
23.3 Consent of Conyers Dill & Pearson (included in the
opinion filed as Exhibit 5)
23.4 Consent of Richards Butler*
24. Powers of Attorney (included as part of the signature
pages hereof)
_______________________
* Filed herewith
Item 9. Undertakings.
Not required to be filed with this Registration Statement pursuant to
General Instruction E for registration statements on Form S-8.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, 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, hereunto duly authorized, in Hong Kong, on this 11th day of
February 2000.
PEAK INTERNATIONAL LIMITED
By: /s/
--------------------------------
Calvin Reed
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Calvin Reed, Jerry Mo and Jack
Menache, and each of them (with full power to each of them to act alone) his
true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to this registration statement and to file the same with all
exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
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Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons
in the following capacities on this 9th day of February 2000:
Signature Title Date
/s/ Calvin Reed President and Chief February 9, 2000
-------------------------- Executive Officer;
Name Director
/s/ Jerry Mo Chief Financial February 9, 2000
- --------------------------- Officer and
Name Controller
/s/ T.L. Li Chairman of the February 9, 2000
- --------------------------- Board
Name
/s/ Douglas Broyles Director February 9, 2000
- ---------------------------
Name
/s/ William Snyder Director February 9, 2000
- ---------------------------
Name
The U.S. Authorized Representative. Because the registrant is a
foreign person under the Securities Act of 1933, as amended, this
registration statement has been signed by the following person as the
registrant's authorized representative in the United States on this 11th day
of February 2000.
PEAK INTERNATIONAL, INC.
By: /s/ Jack Menache
------------------------------
Jack Menache
Vice President Administration,
General Counsel & Secretary
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EXHIBIT INDEX
Exhibit Description
- ------- -----------
4.1 Memorandum of Association of the Registrant (filed as
an exhibit to the Registrant's Registration Statement
on Form F-1 (File No. 333-6652) and incorporated herein
by reference)
4.2 Bye-Laws of the Registrant (filed as an exhibit to the
Registrant's Registration Statement on Form F-1 (File
No. 333-6652) and incorporated herein by reference)
4.3 Specimen of Share Certificate for the Shares of Common
Stock of the Registrant (filed as an exhibit to the
Registrant's Registration Statement on Form F-1 (File
No. 333-6652) and incorporated herein by reference)
4.4 Peak International Limited 1998 Share Option Plan*
5 Opinion of Conyers Dill & Pearson*
23.1 Consent of Deloitte Touche Tohmatsu*
23.2 Consent of BDO Binder*
23.3 Consent of Conyers Dill & Pearson (included in the
opinion filed as Exhibit 5)
23.4 Consent of Richards Butler*
24 Powers of Attorney (included as part of the signature
pages hereof)
_______________________
* Filed herewith
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Exhibit 4.4
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.
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"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.
"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.
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"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 canceled, forfeited, or suspended and the
method or methods by which Awards may be settled, exercised, canceled,
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 2,200,000. 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 canceled without the issue
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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 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 200,000 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.
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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.
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
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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
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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 canceled in consideration of a cash payment or
alternative Award made to the holder of such canceled Award equal in value to
the Fair Market Value as at the original date of grant of such canceled
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.
(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
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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
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transferred in lieu of any fractional Shares or whether such fractional
Shares or any rights thereto shall be canceled, 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 5
[Letterhead of Conyers Dill & Pearman appears here]
11 February, 2000
Peak International Limited
Units 3, 4, 5 and 7, 37th Floor
Cable TV Tower
9 Hoi Shing Road
Tsuen Wan, N.T.
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 registration with the Securities and Exchange
Commission (the "SEC") on Form S-8 (the "Registration Statement") of an
additional 1,500,000 shares (the "Shares") issuable pursuant to a share
option plan (the "Option Plan") adopted by the Company at its annual general
meeting held on 27 July 1998.
For the purposes of giving this opinion, we have examined
and relied upon the following documents:
(i) the Certificate of Incorporation of the Company;
(ii) the Memorandum of Association and Bye-laws of the
Company.
(iii) the Minutes (the "Minutes") of a meeting of the
Board of Directors of the Company held on 3 November 1999.
(iv) the Minutes (the "Minutes") of the annual general
meeting of the Company held on 3 November 1999.
(v) a copy of the draft Registration Statement.
(vi) a copy of the Option Plan.
The documents referred to in (i) to (vi) inclusive are collectively referred
to as the "Documents".
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We have also reviewed such other documents and made such enquiries as to
questions of Bermuda law as we have deemed necessary in order to render the
opinion set forth below.
We have assumed:-
(a) 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) of all documents examined by us and the
authenticity and completeness of the originals from which such copies were
taken;
(b) that the resolutions contained in the Minutes remain
in full force and effect and have not been rescinded or amended.
(c) the accuracy and completeness of all factual
representations and warranties made in the Documents and other documents
reviewed by us;
(d) 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;
(e) that no party is aware of any improper purpose for
the issue of the Shares;
(f) 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 the SEC;
(g) that the Shares are to be issued to persons regarded
as non resident in Bermuda for exchange control purposes;
(h) that the Shares are listed or traded on NASDAQ.
(i) that due payment has been or will be made for the
Shares
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. This
opinion is issued solely for your benefit with respect to the matters
referred to herein 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
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<PAGE>
opinion may be filed as an exhibit to the Registration Statement. We consent
to the reference to Conyers Dill & Pearman under the headings "Enforcement of
Civil Liabilities", "Taxation" and "Legal Matters" in the registration
statement incorporated by reference in the Registration 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.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is
validly existing under the laws of Bermuda.
2. When the shares are issued pursuant to the exercise
of options and upon receipt by the Company of full payment of the exercise
price for the Shares under the Option Plan, the Shares will be validly
issued, fully paid and non-assessable (meaning no further sums will be
payable to the Company with respect to the Shares).
Yours faithfully,
/s/ Conyers, Dill & Pearman
CONYERS, DILL & PEARMAN
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Exhibit 23.1
Consent of Deloitte Touche Tohmatsu
INDEPENDENT AUDITORS' CONSENT
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 for
the year ended March 31, 1998 and appearing in the post-effective amendment
no. 1 and no. 2 to Registration Statement No. 333-53925 of the Company on
Form F-1.
/s/ Deloitte Touche Tohmatsu
DELOITTE TOUCHE TOHMATSU
Hong Kong, February 10, 2000
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Exhibit 23.2
Consent of BDO Binder
[Letterhead of BDO Binder Appears Here]
February 10, 2000
Board Of Directors
Peak International Limited
Re: Consent of Independent Auditors
We consent to the incorporation by reference in this Company's
Registration Statement on Form S-8 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
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Exhibit 23.4
Consent of Richards Butler
[Letterhead of Richards Butler Appears Here]
BY HAND
Peak International Limited Unit 4, 5 and 7
37/F, Wharf Cable Tower 9 Hoi Shing Road
Tsuen Wan New Territories
Attn: Mr. Jerry Mo
9 February, 2000
Dear Sirs,
Peak International Limited - Registration Statement - Consent
We refer to the registration statement of Peak International Limited
on Form S-8 dated 11th February, 2000 (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
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