As filed with the Securities and Exchange Commission on November 30, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------------------------
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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CIRCLE INTERNATIONAL GROUP, INC.
(Exact name of registrant as specified in its charter)
------------------------------------------------------
Delaware 4731 94-1740320
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification
organization) Number)
260 Townsend Street
San Francisco, CA 94107-0933
(415) 978-0600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-------------------------------------------------------
ROBERT H. KENNIS
Circle International Group, Inc.
260 Townsend Street
San Francisco, CA 94107-0933
(415) 978-0600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
John F. Seegal
Gregory R. Liberman
Orrick Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111-3143
(415) 392-1122
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please, check the following
box. ___
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. _X_
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ___
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ___
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. ___
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Maximum Maximum Proposed
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be Price Per Offering Registration
to be Registered Registered Share (1) Price(1) Fee
- ---------------------- ------------- ------------- ------------- -------------
Common Stock, 154,128
$.01 par value shares $17.71875 $2,730,956 $760
================================================================================
(1) Estimated solely for purpose of calculating the registration fee and based
on the average of the high and low prices of the Common Stock on the
National Market tier of the Nasdaq Stock Market on November 12, 1998.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
154,128 Shares
Circle International
Group, Inc.
Common Stock
All of the 154,128 shares of Common Stock being offered hereby (the "Stock")
are being offered for the account of certain stockholders and/or their
respective donees, transferees or successors in interest (the "Selling
Stockholders") of Circle International Group, Inc. (the "Company"). The Company
will not receive any of the proceeds from the sale of the Stock.
The Common Stock is traded on the National Market tier of the Nasdaq Stock
Market under the symbol "CRCL." The closing price of the Common Stock as
reported by the NASDAQ National Market on November 12, 1998 was $17.75.
The Company has been advised by the Selling Stockholders that all or
a portion of the Stock may be disposed of hereunder from time to time through
brokers, acting as agents and charging usual and customary brokerage
commissions, on the National Market tier of the Nasdaq Stock Market, in the
over-the-counter market or in private negotiations, at market prices prevailing
at the time of sale or at negotiated prices. See "Plan of Distribution."
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
---
The date of this Prospectus is November 12, 1998.
<PAGE>
Available Information
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy and information statements, and other
information with the Securities and Exchange Commission (the "Commission") at
450 Fifth Street N.W., Washington, D.C. 20549. Reports, proxy statements and
other information filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at its
principal office in Washington, D.C. and at the Regional Offices of the
Commission at 7 World Trade Center, Suite 1300, New York, New York 10048; and
Northwestern Atrium Center, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained at prescribed rates from
Public Reference Room of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549. The Commission maintains a World Wide Web site that contains
reports, proxy and information statements, and other information that are filed
through the Commission's Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR"). This Web site can be accessed at http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement. Copies of the Registration Statement may be inspected,
without charge, at the principal office of the Commission or at the Regional
Offices referred to above, or obtained upon payment of prescribed rates from the
Public Reference Section of the Commission at its principal office. Electronic
registration statements made through EDGAR are publicly available through the
Commission's Web site.
Incorporation of Certain Information by Reference
The Company's Annual Report on Form 10-K, for the fiscal year ended December
31, 1997, and its Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998, all as filed by the
Company with the Commission pursuant to the 1934 Act, are hereby incorporated in
this Prospectus by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15
(d) of the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus. 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 Prospectus and
the Registration Statement to the extent that a statement contained in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of such person, a copy of any or all of the documents referred to above
which have been or may be incorporated in this Prospectus by reference, other
than exhibits to such documents which are not specifically incorporated by
reference into the information that this Prospectus incorporates. Requests for
such copies should be directed to: Circle International Group, Inc. 260 Townsend
Street, San Francisco, California 94107-0933, Attn: Janice Kerti, telephone
(415) 978-0600.
2
<PAGE>
The Company
Circle International Group, Inc. (prior to May, 1997 known as the Harper
Group, Inc.) is a leader in providing transportation and integrated logistics
services for the international movement of goods and the furnishing of
value-added information, distribution, and inventory management services to
customers worldwide. The Company is principally engaged in international air and
ocean freight forwarding, customs brokerage and integrated logistics. The
Company provides value-added services in addition to those customarily provided
by traditional air freight forwarders, ocean freight forwarders and customs
brokers. These services are designed to provide global logistics solutions for
customers in order to streamline their supply chain, reduce their inventories,
improve their logistics information, enhance their profitability and provide
them with more efficient and effective international distribution strategies.
The Company's global array of services benefits customers by reducing overall
international logistics costs and increasing the speed and reliability of the
delivery of goods worldwide. These services include: air and ocean export and
import freight transportation; worldwide customs brokerage, duty drawback, Free
Trade Zone management and associated services; global freight tracking; other
information management services such as electronic data interchange ("EDI"),
electronic invoicing and purchase order management; logistics management;
warehousing; project cargo management; global purchasing and trade finance
services; and marine insurance (ocean and air coverage).
The Company's global services are supplied through its network of over 300
offices, agents and distribution centers located in over 100 countries on six
continents. These facilities are linked by the Company's real-time, online
communications network that speeds the two-way flow of shipment data and related
logistics information between origins and destinations around the world. In
addition to its own operations, the Company utilizes a network of overseas
agents for comprehensive, global coverage of major trade centers.
The Company commenced operations in 1898, was incorporated in California in
1970, and reincorporated in Delaware in 1987. Until December 31, 1993, its
operating subsidiaries in the United States included Circle Airfreight
Corporation, Inc., its principal international air freight subsidiary, Harper
Robinson &Co., Inc., its principal international ocean freight forwarding and
customs brokerage subsidiary; Max Gruenhut International, Inc., a full service
air and ocean freight forwarding firm; and Darrell J. Sekin and Co. ("Sekin"), a
full service firm engaged in air and ocean freight forwarding and customs
brokerage.
Common Stock and Dividend Data
The Common Stock of the Company has been traded on the National Market tier
of the Nasdaq Stock Market since the Company's initial public offering in 1977.
The Company's stock trades under the symbol "CRCL." The following table sets
forth, for the periods indicated, the highest and lowest closing sale prices for
the Common Stock, as reported by the National Market tier of the Nasdaq Stock
Market.
Fiscal 1996 High Low
---- ---
First Quarter.......................................... 19.25 16.50
Second Quarter......................................... 23.00 17.00
Third Quarter.......................................... 21.88 18.50
Fourth Quarter......................................... 25.75 20.50
Fiscal 1997
First Quarter.......................................... 23.50 21.00
Second Quarter......................................... 27.75 21.63
Third Quarter.......................................... 31.38 24.88
Fourth Quarter......................................... 32.38 22.94
3
<PAGE>
Fiscal 1998
First Quarter.......................................... 29.50 21.00
Second Quarter......................................... 29.00 23.12
Third Quarter.......................................... 28.56 14.00
As of, November 12, 1998, there were approximately 369 holders of record of
the Company's Common Stock. On, November 12, 1998, the last reported sale price
of the Common Stock on the National Market tier of the Nasdaq Stock Market was
$17.75.
The Board of Directors considers payment of cash dividends on a semi-annual
basis, subject to the availability of earnings, the financial condition of the
Company and other relevant factors. The Company's past practice has been to
declare semi-annual dividends, but there can be no assurance that a similar
practice will continue in the future.
4
<PAGE>
Selling Stockholders
The stock being offered hereby by the Selling Stockholders was acquired by
the Selling Stockholders in connection with the acquisition by the Company, in
August 1998, of Alrod International, Inc., a privately held Burlingame,
California-based international freight forwarding and customs brokerage company
("Alrod").
The Selling Stockholders, the only shareholders of Alrod, received 770,642
shares of the Company's Common Stock (the "Stock") in the acquisition. Pursuant
to the Agreement and Plan of Reorganization (the "Agreement"), the Company
agreed to file a registration statement on Form S-3 to register for resale
154,128 shares (the "Registrable Shares"). The Agreement requires the Company to
pay the expenses of such registration and to use its best efforts to cause the
registration statement to remain effective for a period of 180 days or such
shorter period that will terminate when all Stock covered by the registration
statement have been sold.
The following table sets forth certain information with respect to the
Selling Stockholders.
Beneficially Beneficially
Owned Prior Owned
to Offering Number of After Offering
----------------- Shares -------------------
Number of Being Number of
Name Shares Percent Offered Shares Percent
--------- ------- --------- --------- -------
Alberto and Marta Rodriguez
(in community property)..... 577,981 3.4% 115,596 462,385 2.7%
Stephen Russell............. 192,661 1.1% 38,532 154,129 *
- -----------
* Less than one percent.
Plan of Distribution
Resales of the shares by the Selling Stockholders may be made on the National
Market, in the over-the-counter market or in private transactions. The shares
will be offered for sale on terms to be determined when the agreement to sell is
made or at the time of sale, as the case may be. The Selling Stockholders may
sell some or all of the shares in transactions involving broker-dealers who may
act solely as agent and or may acquire shares as principal. Broker-dealers
participating in such transactions as agent may receive commissions from the
Selling Stockholders (and, if they act as agent for the purchaser of such
shares, from such purchaser), such commissions computed in appropriate cases in
accordance with the applicable rules, which commissions may be at negotiated
rates where permissible under such rules. Participating broker-dealers may agree
with the Selling Stockholders to sell a specific number of shares at a
stipulated price per share and, to the extent such broker-dealer is unable to do
so acting as agent, for the Selling Stockholder to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer's commitment to
the Selling Stockholders. Any such sales may be by block trade.
5
<PAGE>
Description of Capital Stock
The authorized capital stock of the Company consists of 40,000,000 shares of
Common Stock, $1.00 par value per share (the "Common Stock"), and 1,000,000
shares of preferred stock, $1.00 par value per share, issuable in series (the
"Preferred Stock"). As of November 12, 1998, there were 17,121,369 shares of
Common Stock issued and outstanding held by approximately 369 holders of record
and no shares of Preferred Stock issued and outstanding.
Common Stock
Subject to preferences that may be applicable to any series of Preferred
Stock outstanding at the time, the holders of outstanding shares of Common Stock
are entitled to receive dividends out of assets legally available therefor at
such time and in such amounts as the Board of Directors may from time to time
determine. Each stockholder is entitled to one vote for each share of Common
Stock held by such holder and may not cumulate votes for the election of
directors. Directors are elected by classes to serve for three-year terms and
such classification of directors could have the effect of delaying, deferring or
preventing a change in control of the Company. The Common Stock is not entitled
to preemptive rights, sinking fund provisions, subscription rights or conversion
rights and is not subject to redemption. Upon the liquidation, dissolution or
winding up of the Company, any assets legally available for distribution to the
shareholders of the Company are distributable ratably among the holders of the
Common Stock and any participating Preferred Stock at the time outstanding after
payment of the liquidation preference, if any, on any outstanding Preferred
Stock. Each outstanding share of Common Stock including the Common Stock offered
hereby is fully paid and nonassessable.
Preferred Stock
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is authorized to fix or alter the rights, preferences,
privileges and restrictions of any wholly unissued series of Preferred Stock,
including the dividend rights, dividend rates, conversion rights, voting rights,
rights and terms of redemption, liquidation preferences and sinking funds, the
number of shares constituting any series and the designation thereof, and to
increase or decrease the number of shares of such series subsequent to the
issuance of shares of such series (but not below the number of shares of such
series then outstanding) without any further vote or action by the stockholders.
The issuance of Preferred Stock could adversely affect the voting power of
holders of the Common Stock and may have the effect of delaying, deferring or
preventing a change in control of the Company.
Section 203 of the Delaware General Corporation Law
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, this statute prohibits under certain
circumstances, a Delaware corporation whose stock is publicly traded or held in
record by more than 2,000 stockholders, from engaging in a "business
combination" with an "interested stockholder" for a period of 3 years after the
date of the transaction which the person became an interested stockholder,
unless (i) the corporation has elected in its certificate of incorporation or
bylaws not to be governed by this Delaware law (the Company has not made such an
election); (ii) prior to the time the stockholder became an interested
stockholder, the board of directors approved either the business combination or
the transaction which resulted in the person becoming an interested stockholder,
(iii) the stockholder owned at least 85% of the outstanding voting stock of the
corporation (excluding shares held by directors who were also officers or held
in certain employee stock plans) upon consummation of the transaction which
resulted in a stockholder becoming an interested stockholder or (iv) the
business combination was approved by the board of directors and by two-thirds of
the outstanding voting stock of the corporation (excluding shares held by the
interested stockholder). "Interested stockholder" is a person who, together with
affiliates and associates, owns (or, if such person is an affiliate or associate
of the corporation, any time within the prior three years did own) 15% or more
of the corporation's outstanding voting stock. The term "business combination"
is defined generally to include mergers, consolidations, stock sales, asset
based transactions, and other transactions resulting in a financial benefit to
the interested stockholder.
6
<PAGE>
Transfer Agent and Registrar
ChaseMellon Shareholder Services, L.L.C. is the transfer agent and registrar
for the Company's Common Stock.
Legal Matters
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company and the Selling Stockholders by Orrick, Herrington &
Sutcliffe LLP, San Francisco, California.
Experts
The Company's consolidated financial statements as of December 31, 1997 and
1996 and for each of the three years in the period ended December 31, 1997,
incorporated herein by reference from the Company's Annual Report on Form 10-K
for the year ended December 31, 1997, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and has been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
7
<PAGE>
==================================== ====================================
No dealer, salesman or other
person has been authorized to give 154,128 Shares
any information or to make any
representations other than those
contained in the Prospectus in
connection with the offer made by Circle International
this Prospectus and, if given or Group, Inc.
made, such information or
representations must not be relied
upon as having been authorized by Common Stock
the Company or by any selling
stockholder. Neither the delivery
of this Prospectus nor any sale
made hereunder shall under any
circumstances create an
implication that there has been no
change in the affairs of the ______________
Company since the date hereof.
This Prospectus does not PROSPECTUS
constitute an offer or _____________
solicitation by anyone in any
state in which such offer or
solicitation is not authorized or
in which the person making such
offer or solicitation is not
qualified to do so to anyone to
whom it is unlawful to make such
offer or solicitation.
----------------
TABLE OF CONTENTS
Available Information...........2
Incorporation of Certain
Information by Reference......2
The Company.....................3
Common Stock and Dividend Data..3
Selling Stockholders............5
Plan of Distribution............5
Description of Capital Stock....6
Legal Matters...................7
Experts.........................7
November 12, 1998
=================================== =====================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the
registrant in connection with the distribution of the Common Stock being
registered. All amounts are estimated, except the SEC registration fee, the NASD
filing fee and the Nasdaq National Market application fee:
SEC registration fee........................ $ 760
Accounting fees and expenses................ 8,000
Legal fees and expenses..................... 5,000
-------
Total..................................... $13,760
=======
Item 15. Indemnification of Directors and Officers
Section 6(b) of the Company's Certificate of Incorporation provides that
directors of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director, to
the fullest extent permitted by the General Corporation Law of the State of
Delaware. Article V of the Company's By-Laws provides for indemnification of
officers and directors to the full extent and in the manner permitted by
Delaware law. Section 145 of the Delaware General Corporation Law makes
provision for such indemnification in terms sufficiently broad to cover officers
and directors under certain circumstances for liabilities arising under the
Securities Act of 1933.
The Company has entered into indemnification agreements with each director
which provide indemnification under certain circumstances for acts and omissions
which may not be covered by any directors' and officers' liability insurance.
The Registration Rights Agreement provides for the indemnification of
officers and directors of the Company under certain circumstances.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit
Number Exhibit
------ -------
1.1 Registration Rights Agreement among Registrant, Alberto Rodriguez,
Marta Rodriguez and Stephen Russell dated July 30, 1998.
3.1 Certificate of Incorporation (incorporated by reference to Exhibit 4.2
to Registration Statement No. 33-40826).
3.2 By-Laws, as amended (incorporated by reference to Exhibit 3.2.1 to
Annual Report on Form 10-K for the fiscal year ended December 31,
1986).
4.1 Specimen certificate of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Registration Statement No. 2-59017).
5.1 Opinion and Consent of Orrick, Herrington & Sutcliffe LLP. 23.1
Consent of Deloitte and Touche LLP. 23.2 Consent of Orrick, Herrington
& Sutcliffe LLP (See Exhibit 5.1). 24.1 Powers of Attorney (see Page
II-4). Item 17. Undertakings
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit 5.1).
II-1
<PAGE>
24.1 Powers of Attorney (see Page II-4).
Item 17. Undertakings
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offering therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(2) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment to those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE>
(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.
II-3
<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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on this 17th day
of November, 1998.
CIRCLE INTERNATIONAL GROUP, INC.
By:/s/ David I. Beatson
-------------------------------------
David I. Beatson
(President and Chief Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints David I. Beatson and Robert H. Kennis,
and each of them, his true and lawful attorneys-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to do
and perform each and every act and thing requisite or 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 or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Capacity Date
--------- -------- ----
President, Chief Executive
/s/ David I. Beatson Officer and Director November 17, 1998
- -----------------------
David I. Beatson (Principal Executive Officer)
Senior Vice President and
Chief Financial Officer
/s/ Janice Kerti (Principal Financial Officer and November 17, 1998
- -----------------------
Janice Kerti Principal Accounting Officer)
/s/ Peter Gibert Chairman of the Board of Directors November 17, 1998
- -----------------------
Peter Gibert
/s/ Wesley J. Fastiff Director November 17, 1998
- -----------------------
Wesley J. Fastiff
Director November 17, 1998
- -----------------------
Edwin J. Holman
II-4
<PAGE>
/s/ John M. Kaiser Director November 17, 1998
- -----------------------
John M. Kaiser
Director November 17, 1998
- -----------------------
John M. Lillie
/s/ Ray C. Robinson, Jr. Director November 17, 1998
- -----------------------
Ray C. Robinson, Jr.
Director November 17, 1998
- -----------------------
Frank J. Wezniak
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
------ -------
1.1 Registration Rights Agreement among Registrant, Alberto Rodriguez,
Marta Rodriguez and Stephen Russell dated July 30, 1998.
3.1 Certificate of Incorporation (incorporated by reference to Exhibit 4.2
to Registration Statement No. 33-40826).
3.3 By-Laws, as amended (incorporated by reference to Exhibit 3.2.1 to
Annual Report on Form 10-K for the fiscal year ended December 31,
1986).
4.1 Specimen certificate of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Registration Statement No. 2-59017).
5.1 Opinion and Consent of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit 5.1).
24.1 Powers of Attorney (see Page II-4).
<PAGE>
Exhibit 1.1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights agreement ("Agreement) dated July 31, 1998, is
made by and among Circle International Group, Inc., a Delaware corporation
("Circle"), Alberto Rodriguez, Marta Rodriguez and Stephen Russell, the other
former shareholders (collectively, the "Shareholders" and each individually, a
"Shareholder") of Alrod International, Inc.
R E C I T A L S:
----------------
A. The Shareholders have received shares (the "Stock") of Circle common
stock, $1.00 par value ("Circle Common Stock"), in connection with the
acquisition of Alrod International, Inc., by Circle. "Stock" shall also include
any securities issued with respect to the Circle Common Stock owned by the
Shareholders by way of any conversion, exchange, stock split, stock dividend,
recapitalization, merger, consolidation, reorganization, reclassification, or
similar event.
B. In connection therewith, Circle has granted certain registration rights
to the Shareholders.
A G R E E M E N T:
------------------
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Required Registrations.
(a) Request. At any time, the Shareholders may request Circle, in
writing, to effect the registration under the Securities Act of 1933 (the
"Securities Act") of up to 20% of the Stock (which number shall be appropriately
adjusted for any conversion, exchange, stock split, stock dividend,
recapitalization, merger, consolidation, reorganization, reclassification, or
similar event). Thereupon, Circle shall file with the Securities and Exchange
Commission as promptly as practicable (and in any event within 30 days after
receiving the Shareholders' request) a registration statement under the
Securities Act covering the Stock that Circle has been requested to register.
Circle shall, as expeditiously as possible, use its best efforts to effect the
registration of all Stock that Circle has been requested to register so that
such Stock may be sold at such times and in such manner as the Shareholders have
requested. Provided, however, that (i) Circle shall have no obligation to cause
such registration statement to become effective and (ii) the Shareholders shall
have no rights to sell any Stock until after the No Sale Period (as defined in
the Agreement and Plan of Reorganization executed by the parties on July 8,
1998).
(b) Number. Circle shall not be required to take any action to effect
a registration under this Section 1 if it has previously filed a registration
statement at the request of the Shareholders that became effective and Circle
otherwise complied with this Agreement with respect to that registration
statement. If a registration statement requested under Section l(a) has become
effective and the offering of Stock pursuant to that registration is interfered
with by any stop order, injunction, or other order or requirement of the
Securities and Exchange Commission or other governmental agency or court, such
registration will be deemed not to have been effected.
(c) Other Securities. Without the consent of the Shareholders, no
other securities owned or to be sold by any other person, including Circle, may
be included in a registration statement filed under this Section 1.
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(d) Underwriting. If the Shareholders intend to distribute the Stock
covered by its request by means of an underwriting, they shall so advise Circle
in such request, and Circle shall include such information in the written notice
required above. Circle shall enter into an underwriting agreement with a
managing underwriter (selected by the Shareholders, which agreement and
underwriter shall be reasonably satisfactory in form and substance to Circle)
and shall contain such representations, warranties and covenants by Circle and
such other terms as are customarily contained in agreements of that type used by
the managing underwriter, including Indemnities to the effect and to the extent
provided in Section 6 hereof
2. Limitation on Obligation. Circle shall not be required by this Agreement
to register Stock if, in the opinion of counsel for Circle (which shall be in
writing and addressed to the Shareholders), the proposed sale of the Stock as to
which registration is requested is exempt from the registration provisions of
the Securities Act and the securities laws of the states in which the Stock are
to be sold.
3. Expenses. Circle will pay all expenses of all registrations under this
Agreement, including, without limitation, all registration and filing fees,
exchange listing or NASDAQ inclusion fees, printing expenses, fees and
disbursements of counsel and accountants for Circle, the reasonable fees and
expenses of one counsel selected by the Shareholders to represent the
Shareholders, and state Blue Sky fees and expenses, but excluding underwriting
discounts, selling commissions, transfer taxes incurred as a result of such
sales, and the fees and expenses of any additional counsel for the Shareholders.
4. Certain Obligations of Circle. In connection with any registration
filings effected under this Agreement, Circle shall:
(a) Preparation and Filing. Promptly prepare, file and use its best
efforts to cause to become effective the registration statement and such
amendments and supplements to the registration statement and the prospectus used
in connection therewith as may be necessary to keep the registration statement
effective for a period of 180 days or such shorter period that will terminate
when all Stock covered by the registration statement have been sold (but not
before the expiration of the applicable prospectus delivery period referred to
in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable);
and to comply with the provisions of the Securities Act and applicable state
securities laws with respect to the disposition of the Stock covered by the
registration statement;
(b) Provide Prospectus. Furnish to each selling Shareholder such
reasonable number of copies of the registration statement and each amendment and
supplement thereto, the prospectus included in such registration statement
(including the preliminary prospectus), in conformity with the requirements of
the Securities Act, and such other documents as such Shareholder may reasonably
request in order to facilitate the disposition of his or her Stock;
(c) Opinion and Letter. If the Stock is being sold through
underwriters, use Circle's best efforts to cause the independent certified
public accountants of Circle to deliver to the selling Shareholders, and to the
underwriters, letters on the date that the registration statement becomes
effective and on the date the Stock is delivered to the underwriters for sale
pursuant to such registration, stating that they are independent certified
public accountants within the meaning of the Securities Act and the rules and
regulations of the Securities and Exchange Commission thereunder, and that, in
their opinion, the financial statements and other financial data of Circle
included in the registration statement or prospectus, or any amendment or
supplement thereto, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, and such other
financial matters customarily provided in a "comfort letter" as the underwriter
or the selling Shareholders may reasonably request;
(d) Blue Sky. Use its reasonable best efforts to register or qualify
the Stock covered by the registration statement under the securities or "blue
sky" laws of such jurisdictions as the selling Shareholders shall reasonably
request, and accomplish any and all other acts which may be reasonably necessary
or advisable to enable such Shareholders to consummate the disposition in such
jurisdictions of the Stock covered by the registration statement; provided,
however, that Circle shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 4(d); (ii) escrow shares of its capital stock; (iii)
subject itself to taxation in any such jurisdiction; or (iv) consent to general
service of process in any such jurisdiction;
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<PAGE>
(e) Notification. Notify each selling Shareholder at any time when a
prospectus relating to Stock is required to be delivered under the Securities
Act of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such Shareholder, Circle will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Stock, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading; provided that the 30-day and 180-day periods described in
Section 4(a) will be tolled from the time a prospectus contains such a statement
or omission until a prospectus correcting such statement or omission has been
delivered to the Shareholders and may be delivered to the purchasers of such
Stock in compliance with the Securities Act;
(f) Listing. Cause all Stock registered to be listed on each
securities exchange on which the Circle Common Stock is then listed;
(g) Effectiveness. Notify the selling Shareholders immediately, and
confirm the notice in writing, (1) when the registration statement becomes
effective, (2) of the issuance by the Securities and Exchange Commission of any
stop order of the initiation, or the threatening, of any proceedings for that
purpose, (3) of the receipt by Circle of any notification with respect to the
suspension of qualification of the Stock for sale in any jurisdiction or of the
initiation, or the threatening, of any proceedings for that purpose, and (4) of
the receipt of any comments, or requests for additional information, from the
Securities and Exchange Commission or any state regulatory authority. If the
Securities and Exchange Commission or any state regulatory authority shall enter
such a stop order or order suspending qualification at any time, Circle will
promptly use its reasonable best efforts to obtain the lifting of such order;
and
(h) Compliance and Earnings Statement. Otherwise use its best efforts
to comply with all applicable rules and regulations of the Securities and
Exchange Commission, and make available to its security holders as soon as
reasonably practicable, but not later than 15 months after the effective date of
the registration statement, an earnings statement covering a period of at least
l2 months beginning after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
5. Indemnification.
(a) Circle. Circle will indemnify and hold harmless each Shareholder
requesting or joining in the registration hereunder and each other person, if
any, who controls such Shareholder within the meaning of Section 15 of the
Securities Act and each underwriter who participated in the offering of such
Stock, against any losses, claims, damages, liabilities (or actions in respect
thereto) and expenses, joint or several, to which such Shareholder or
controlling person or underwriter may become subject under the Securities Act,
or otherwise, as a result of any omission or alleged omission from the
registration statement (or amendment thereto) of any material fact required to
be stated therein or necessary to make the statements therein not misleading, or
by reason of the fact that such registration statement (or amendment thereto)
contains any untrue or alleged untrue statement of a material fact, or by reason
of any omission or alleged omission from any prospectus (or supplement thereto)
or preliminary prospectus of any material fact necessary to be stated therein in
order to make the statements therein in light of the circumstances under which
they were made not misleading, or by reason of the fact that such prospectus (or
any amendment or supplement thereto) or preliminary prospectus contained any
untrue or alleged untrue statement of a material fact, unless such statement or
omission was made in reliance upon and in conformity with written information
furnished to Circle by such Shareholder specifically for use in the preparation
thereof.
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<PAGE>
(b) The Shareholders. By requesting Stock to be covered by the
registration statement in accordance with this Agreement, each Shareholder,
severally and not jointly, agrees to indemnify and hold harmless Circle, each of
its directors, each of its officers who have signed the registration statement,
and each person, if any, who controls Circle within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages, liabilities (or actions
in respect thereto) or expenses to which Circle or any such director, officer or
controlling person may become subject under the Securities Act, or otherwise,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) or expenses arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in such registration statement (or
amendment thereto), or prospectus (or supplement thereto) contained therein, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement (or amendment thereto),
or prospectus (or supplement thereto), in reliance upon and in conformity with
written information furnished to Circle by the Shareholder specifically for use
in the preparation thereof. The liability of each such Shareholder will be in
proportion to and limited to the net amount received by such Shareholder from
the sale of Stock pursuant to such registration statement.
(c) Participation by Indemnifying Party. In case any such action is
brought against any indemnified party, and it, he or she notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it, he or she may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel to whose employment such indemnified party has
consented (which consent shall not be unreasonably withheld); and after notice
from the indemnifying party to such indemnified party of its, his or her
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 5 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation and except as
otherwise provided below; provided, however, that such indemnified party shall,
at all times, cooperate in the defense of the indemnified party. The
indemnifying party shall be liable to the indemnified party for legal or other
expenses incurred by the indemnified party even if the indemnifying party has
offered to assume the defense thereof if (i) the employment of counsel by the
indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnified party and the indemnifying party in the
conduct of the defense of such action or (iii) the indemnifying party shall not
in fact have employed counsel to assume the defense of such action.
6. Contribution. The parties further agree that, if the indemnity
provisions of this Agreement are held to be unenforceable, an indemnified party
may recover contribution from an indemnifying party or parties in an amount
that, when added to contributions the indemnified party has theretofore received
or currently receives from other persons, will reimburse the indemnified party
for all losses, claims, damages, or liabilities and legal and other expenses;
provided, however, that if the full amount of the contribution specified in this
Section 6 is not permitted by law, then the indemnified party shall be entitled
to contribution from the indemnifying party to the full extent permitted by law.
7. Information by Shareholder. Each Shareholder whose Stock is included in
any registration pursuant to this Agreement shall furnish to Circle such written
information regarding such Shareholder and the distribution proposed by such
Shareholder as Circle may reasonably request in writing and as shall be required
in connection with any registration.
8. Assignability. The registration rights under this Agreement shall inure
to the benefit of the successive holders of the Stock who hereafter acquire
ownership of the Stock from any Shareholder, other than pursuant to a "brokers'
transaction" as defined in paragraph (g) of Rule 144 promulgated under the
Securities Act or pursuant to a registration statement that has been declared
effective under the Securities Act; provided that such assignment is in writing
and that notice of such assignment is given to the other parties hereto. Any
such successor or assignee shall acknowledge in writing that its rights are
subject to this Agreement before it shall be entitled to the benefits of this
Agreement.
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9. Shareholders' Compliance with Securities Laws. Each Shareholder shall,
at all times, cooperate with Circle and its legal counsel in the preparation,
execution and filing of all reports, forms and proxy solicitation material which
Circle must file with the Securities and Exchange Commission and with applicable
securities regulatory bodies.
10. Rule 144. Circle agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act, and to take such other actions that may be required to enable
the Shareholders to sell their Stock under Rule 144; and
(b) furnish to any Shareholder upon request a written statement by
Circle as to its compliance with the reporting requirements of Rule 144.
11. Severability and Reformation. The parties hereto intend all provisions
of this Agreement to be enforced to the fullest extent permitted by law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any provision contained herein or therein is too broad to be enforced as
written, the parties intend that the court should reform the provision to such
narrower scope as it determines to be enforceable. If, however, any provision
contained herein or therein is held to be illegal, invalid or unenforceable
under present or future law, such provision shall be fully severable, and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision were never a part hereof, and the remaining provisions
hereof shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance. The inclusion
in this Agreement of any provision that is so reformed or severed shall not be
deemed to waive the rights of any party hereto.
12. Attorneys' Fees. If any legal action is brought by any party hereto to
interpret or enforce the terms and conditions of this Agreement, it is expressly
agreed that the party in whose favor a final judgment is entered shall be
entitled, in addition to any other relief which may be awarded, to recover from
the other party or parties its or his reasonable attorneys' fees together with
such prevailing parties other costs and reasonable and necessary expenses
incurred in connection with such litigation.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. Notices.
(a) Address. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be hand delivered or sent by recognized
overnight courier or registered or certified United States mail (postage
prepaid), return receipt requested, addressed, if to any Shareholder, to the
address listed under his or her name on the signature page, and, if to Circle,
to:
Circle International Group, Inc.
260 Townsend Street
San Francisco, CA 94107-0933
Attn: Vice-President, General Counsel
Each notice, request, demand, and other communication delivered or sent in the
manner described above shall be deemed sufficiently delivered or sent at such
time as it is delivered to the addressee (with the return receipt deemed
conclusive evidence of such receipt) or at such time as delivery is refused by
the addressee.
(b) Change of Address. Each Shareholder or Circle may change the
address to which notices, requests, demands, and other communications hereunder
are to be sent to such party by giving all other parties hereto notice thereof
in accordance with paragraph (a) of this Section.
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15. Entire Agreement. This document embodies the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
16. Successors; Amendment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, legatees, personal
representatives, successors, and assigns This Agreement may be amended only by
an agreement in writing executed by each Shareholder and Circle. This Agreement
and any of the terms hereof may be waived or discharged only by an instrument in
writing signed by the party against whom enforcement of such waiver or discharge
is sought.
17. Governing Law. THIS AGREEMENT, AND THE RIGHTS AND THE OBLIGATIONS OF
THE PARTIES HERETO, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA.
EXECUTED as of the date first written above.
CIRCLE INTERNATIONAL GROUP, INC.
By:
---------------------------------------
Its:
---------------------------------------
SHAREHOLDERS
address: By:
---------------------------------------
Alberto Rodriguez
address:
---------------------------------------
Marta Rodriguez
address:
---------------------------------------
Stephen Russell
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[ORRICK, HERRINGTON & SUTCLIFFE LLP LETTERHEAD]
EXHIBIT 5.1
November 17, 1998
Circle International Group, Inc.
260 Townsend Street
San Francisco, California 94107-0933
Re: Circle International Group, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with a
proposed sale by a certain stockholders ("Selling Stockholders") of Circle
International Group, Inc., a Delaware corporation (the "Company") of up to
154,128 shares (the "Shares") of common stock, $1.00 par value (the "Common
Stock") pursuant to a Registration Statement on Form S-3.
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy, and completeness of the information, representations, and warranties
contained in the records, documents, instruments, and certificates we have
reviewed.
Based on such examination, we are of the opinion that the currently
issued and outstanding Shares covered by the Registration Statement are legally
issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and to the use of our name wherever it
appears in said Registration Statement, including the Prospectus constituting a
part thereof, as originally filed or as subsequently amended or supplemented. In
giving such consent, we do not consider that we are "experts" within the meaning
of such term as used in the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission issued thereunder, with
respect to any part of the Registration Statement, including this opinion as an
exhibit or otherwise.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
--------------------------------------
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Circle International Group, Inc. on Form S-3 of our report dated March 13, 1998,
appearing in the Annual Report on Form 10-K of Circle International Group, Inc.
for the year ended December 31, 1997 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
San Francisco, California
November 23, 1998
