<PAGE> 1
As filed with the Securities and Exchange Commission on
June 11, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CIRCLE INTERNATIONAL GROUP, INC.
(Exact name of issuer as specified in its charter)
Delaware 94-1740320
(State or other jurisdiction (I.R.S. employer
of incorporation or identification number)
organization)
260 Townsend Street, San Francisco, California 94107-0933
(Address of principal executive offices) (Zip Code)
THE CIRCLE INTERNATIONAL GROUP, INC. 1994 OMNIBUS EQUITY
INCENTIVE PLAN
(Full title of the plan)
Peter Gibert
Circle International Group, Inc.
260 Townsend Street, San Francisco, California 94107-0933
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(415) 978-0600
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
CALCULATION OF REGISTRATION FEE
=================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price Offering Amount
Registered Registered Per Price* of Regis-
Share* tration
Common Stock, 500,000 shares $25.046875 12,523,437.50 $3,695.00
and Options
to Purchase
Common Stock
=================================================================
* Estimated solely for the purpose of calculating the
registration fee on the basis of $25.046875, the average of the
high and low prices for the Common Stock on June 10, 1998 as
reported by NASDAQ.
<PAGE> 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this
registration statement: (i) the Annual Report on Form 10-K for
The Circle International Group, Inc. (the "Company") for the
fiscal year ended December 31, 1997 filed pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); (ii) all reports filed by the Company
pursuant to Sections 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by such Form 10-K; and (iii) the
description of the Company's common stock set forth in the
Company's Registration Statement on Form 8-A relating thereto,
including any amendment or report filed for the purpose of
updating such description. All documents filed by the Company
after the date of this registration statement pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment (that indicates all
securities offered have been sold or deregisters all securities
then remaining unsold), shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article SIXTH 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
(the "DGCL").
Article V of the Company's Bylaws provides for indemnification of
officers and directors to the full extent and in the manner
permitted by Delaware law.
Section 145 of the DGCL 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 and officer which provide indemnification under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
<PAGE> 3
ITEM 8. EXHIBITS
4.1 The Circle International Group, Inc. 1994 Omnibus Equity
Incentive Plan, as amended (incorporated by reference to
Exhibit 10.11 to the registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, Commission File
No. 0-8664 and Exhibit 10.11.1 to the registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995, Commission File No. 0-8664).
4.2 Form of Nonqualified Stock Option Agreement.
4.3 Form of Restricted Stock Award Agreement.
4.4 Form of Incentive Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act 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 information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form
S-3 or Form S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
<PAGE> 4
(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.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act 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 (and, where applicable, each filing of the Plan's annual
report pursuant to 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 offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the 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 of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE> 5
Signatures
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of San Francisco, State of California on the 22nd of May, 1998.
The Circle International Group, Inc.
(Registrant)
/s/ Peter Gibert
-------------------------------------
Peter Gibert
Chairman of the Board of Directors,
President and Chief Executive Officer
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 Title Date
Principal Executive Officer:
/s/ Peter Gibert
------------------------
Peter Gibert President, Chairman May 22, 1998
of the Board and
Chief Executive
Officer
Principal Financial Officer
and Accounting Officer:
/s/ Janice Kerti
------------------------
Janice Kerti Senior Vice May 22, 1998
President, Chief
Financial Officer
Directors:
/s/ Peter Gibert
------------------------
Peter Gibert Director May 22, 1998
/s/ John M. Kaiser
------------------------
John M. Kaiser Director May 22, 1998
/s/ Ray C. Robinson, Jr.
------------------------
Ray C. Robinson, Jr. Director May 22, 1998
/s/ Wesley J. Fastiff
------------------------
Wesley J. Fastiff Director May 22, 1998
A majority of the members of the Board of Directors.
<PAGE> 6
EXHIBIT INDEX
4.1 The Circle International Group, Inc. 1994 Omnibus Equity
Incentive Plan, as amended (incorporated by reference to
Exhibit 10.11 to the registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, Commission File
No. 0-8664 and Exhibit 10.11.1 to the registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995, Commission File No. 0-8664).
4.2 Form of Nonqualified Stock Option Agreement.
4.3 Form of Restricted Stock Award Agreement.
4.4 Form of Incentive Stock Option Agreement.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1.
<PAGE> 7
EXHIBIT 4.1
AMENDMENT NO. 2 TO THE
CIRCLE INTERNATIONAL GROUP, INC.
1994 OMNIBUS EQUITY INCENTIVE PLAN
THE CIRCLE INTERNATIONAL GROUP, INC. (formerly, The
Harper Group, Inc.) (the "Company"), having established The
Harper Group, Inc. 1994 Omnibus Equity Incentive Plan (the
"Plan"), hereby amends the Plan, effective as of March 5, 1998,
as follows:
1. Each reference in the Plan to "The Harper Group,
Inc." is deleted and replaced with the reference "The Circle
International Group, Inc.".
2. Section 1.1 is hereby amended in its entirety to
read as follows:
1.1 Establishment of the Plan. The Circle
International Group, Inc. (formerly, The Harper Group,
Inc.), a Delaware corporation (the "Company"),
established an incentive compensation plan known as
"The Circle International Group, Inc. 1994 Omnibus
Equity Incentive Plan" (formerly, "The Harper Group,
Inc. 1994 Omnibus Equity Incentive Plan") (the "Plan")
effective as of February 28, 1994. The Plan permits
the grant of Nonqualified Stock Options, Incentive
Stock Options, SARs, Restricted Stock, Performance
Units, and Performance Shares.
3. Section 2.7 is hereby amended in its entirety to
read as follows:
2.7 "Company" means The Circle International
Group, Inc. (formerly, The Harper Group, Inc.), a
Delaware corporation.
4. The first paragraph of Section 4.1 is hereby
amended in its entirety to read as follows:
Subject to adjustment as provided in Section 4.3,
the total number of Shares available for grant under
the Plan may not exceed 2,500,000. These 2,500,000
Shares may be either authorized but unissued or
reacquired Shares.
5. Section 8.5 is hereby amended in its entirety to
read as follows:
8.5 Certificate Legend. In addition to any
legends placed on certificates pursuant to Section 8.4,
each certificate representing Shares of Restricted
Stock shall bear the following legend:
<PAGE> 8
"The sale or other transfer of the shares of stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to
certain restrictions on transfer as set forth in The
Circle International Group, Inc. 1994 Omnibus Equity
Incentive Plan, and in a Restricted Stock Agreement. A
copy of the Plan and such Restricted Stock Agreement
may be obtained from the Chief Financial Officer of The
Circle International Group, Inc."
IN WITNESS WHEREOF, the Company, by its duly authorized
officer, has executed this Amendment No. 2 on the date indicated
below.
THE CIRCLE INTERNATIONAL GROUP, INC.
Date: May 22, 1998 /s/ Peter Gibert
----------------------------
Peter Gibert
Title: President, Chairman of
the Board, and Chief
Executive Officer
<PAGE> 9
EXHIBIT 4.2
THE CIRCLE INTERNATIONAL GROUP, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT made and entered into this ____th day
of ___________, 199__, by and between Circle International Group,
Inc., a Delaware corporation (the "Company"), and ___________,
an employee of the Company (the "Employee"),
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1994 Omnibus
Equity Incentive Plan (the "Plan"), providing for the granting to
its employees of stock options relating to shares of its common
stock (the "Common Stock"),
WHEREAS, the Plan provides for the grant of options
which are not intended to be incentive stock options within the
meaning of Section 422A of the Internal Revenue Code of 1986, as
amended, ("non-qualified stock option"); and
WHEREAS, the Employee is a key employee who is in a
position to make an important contribution to the long-term
performance of the Company.
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. The Company hereby grants to the Employee a non-qualified
stock option to purchase _______ shares of the Common Stock at
the price set forth in Paragraph 2 hereof, on the terms and
conditions hereinafter stated. In consideration of the grant of
this option and the other rights which are being concurrently
ranted to the employee, the Employee hereby agrees to continue in
the employment of the Company for a period of at least one year
from the date of grant. The parties agree that this option will
not be treated as an "incentive stock option".
<PAGE> 10
2. The purchase price per share is _______ Dollars
and ______ Cents ($_____) (which is hereby agreed to be 100% or
more of the fair market value of such Common Stock at date of
grant).
3. The number of shares of Common Stock covered
hereby and the price per share thereof shall be proportionately
adjusted for any increase or decrease in the number of issued and
outstanding shares of Common Stock resulting from a subdivision
or consolidation of shares or the payment of a stock dividend in
excess of 2% or any other increase or decrease in the number of
issued and outstanding shares of Common Stock effected without
receipt of consideration by the Company.
If the Company shall be the surviving corporation in
any merger or consolidation, this option (to the extent that it
is still outstanding) shall pertain to and apply to the
securities of which a holder of the same number of shares of
Common Stock that are subject to the option would have been
entitled. A dissolution or liquidation of the Company or a
merger or consolidation in which the Company is not the surviving
corporation shall cause this option to terminate, unless the
agreement of merger or consolidation shall otherwise provide,
provided that the Employee shall in such event have the right
immediately prior to such dissolution or liquidation, or merger
or consolidation in which the Company is not the surviving
corporation, to exercise this option in whole or in part without
regard to any limitations on exercisability.
If the optionee's employment with the Company is
terminated because of a change in control of the Company (as
defined in the Company's 1990 Stock Option Plan), then the
optionee shall have the right immediately upon notice of
termination to exercise his option in whole or in part without
regard to any limitations on exercisability.
<PAGE> 11
To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be
made by the Compensation Committee of the Board of Directors of
the Company (the "Committee"), whose determination in that
respect shall be final, binding and conclusive.
The grant of this option shall not affect in any way
the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business or
assets.
4. This option may not be exercised in whole or in
part until three years have elapsed from the date of this
Agreement. Subject to the conditions stated herein, the right to
exercise this option shall accrue in installments as follows:
(i) During the period of 12 months beginning three
years after the date of this Agreement, this option may be
exercised to the extent of 25% of the shares subject to option;
(ii) During the period of 12 months beginning
________, ______, this option may be exercised to the extent of
25% of the shares subject to option plus the shares as to which
the right to exercise this option has previously accrued but has
not been exercised.
(iii) During the period of 12 months beginning
________, ______, this option may be exercised to the extent of
25% of the shares subject to option plus the shares as to which
the right to exercise this option has previously accrued but has
not been exercised.
<PAGE> 12
(iv) During the period of 24 months beginning
________, ______, this option may be fully exercised to the extent
that it has not previously been exercised.
No partial exercise of this option will be permitted
for less than ten shares.
5. In the event of termination of the Employee's
employment for any reason other than his death, this option shall
immediately terminate; provided, however, that if such cessation
of employment is with the consent of the Board of Directors,
expressed in the form of a resolution, or is pursuant to his
retirement under the provisions of any pension, profit sharing or
other retirement plan of the Company then in effect, or is on
account of permanent illness or disability, this option may be
exercised (subject to the provisions of Paragraph 12 hereof)
within three months after the date he ceases to be an employee of
the Company, but only to the extent that it was exercisable on
the date of such cessation of employment.
6. This option shall be exercisable during the
Employee's lifetime only by him and shall be nontransferable by
the Employee otherwise than by will or the laws of descent and
distribution.
7. In the event of the Employee's death while in the
employ of the Company, or during a three-month period following
termination of employment during which the Employee is permitted
to exercise this option pursuant to Paragraph 5 hereof, this
option may be exercised (subject to the provisions of Paragraph
12 hereof) at any time within one year after the Employee's death
by the Employee's transferee to the same extent as the Employee
could have exercised the option immediately prior to the
employee's death. The Employee's transferee shall be the person
or persons, designated by the Employee on a Beneficiary
Designation Form furnished by the Committee, provided, however,
that if at the time of the Employee's death, there is no
effective Beneficiary Designation Form on file with the
Committee, the Employee's transferee shall be deemed to be the
executor or administrator of the employee's estate or any person
who shall have acquired the option from the Employee by the
employee's will or the applicable law of descent and
distribution. Any such transferee exercising this option must
furnish the Company upon request of the Committee (a) written
notice of his status as transferee, (b) evidence satisfactory to
the Company to establish the validity of the transfer of the
option in compliance with any laws or regulations pertaining to
said transfer, and (c) written acceptance of the terms and
conditions of the option as prescribed in this Agreement.
<PAGE> 13
8. This option may be exercised by the person then
entitled to do so as to any share which may then be purchased by
giving written notice of exercise to the Company, specifying the
number of full shares to be purchased and accompanied by full
payment of the purchase price thereof and the amount of any
income tax the Company is required by law to withhold by reason
of such exercise.
9. Neither the Employee nor any person claiming under
or through him shall be or have any of the rights or privileges
of a stockholder of the Company in respect of any of the shares
issuable upon the exercise of the option, until the date of the
receipt of payment by the Company and the issuance of a stock
certificate to him for such shares in accordance with the terms
hereof.
10. Any notice to be given to the Company under the
terms of this Agreement shall be addressed to Circle
International Group, Inc., in care of its Corporate Secretary, at
260 Townsend Street, San Francisco, California 94107, or at such
other address as the Company may hereinafter designate in
writing. Any notice to be given to the Employee shall be
addressed to the Employee at the address set forth beneath his
signature hereto, or at any such other address as the Employee
may hereafter designate in writing.
Any such notice shall be deemed to have been duly given if and
when enclosed in a properly sealed envelope, addressed as
aforesaid, registered and deposited, postage and registry fee
prepaid, in a post office or branch post office regularly
maintained by the United States Government.
<PAGE> 14
11. Except as otherwise stated herein, the option
herein granted and the rights and privileges conferred hereby
shall not be transferred, assigned, pledged or hypothecated in
any way (whether by operation or law or otherwise) and shall not
be subject to sale under execution, attachment or similar process
upon the rights and privileges conferred hereby. Upon any
attempt to transfer, assign, pledge or otherwise dispose of said
option, or of any right or privilege conferred hereby, contrary
to the provisions hereof, or upon any attempted sale under any
execution, attachment or similar process upon the rights and
privileges conferred hereby shall immediately become null and
void.
12. Notwithstanding any other provision of this
Agreement, this option is not exercisable after the expiration of
eight years from the date hereof.
13. Subject to the limitations on transferability
contained herein, this Agreement shall be binding upon and inure
to the benefit of the heirs, legal representatives, successors
and assigns of the parties hereto.
14. The rights awarded hereby are subject to the
requirement that, if at any time the Committee shall determine,
in its sole discretion, that the listing, registration or
qualification of the shares of Common Stock subject to such
rights upon any securities exchange or under any state or federal
law, or the consent or approval of any government regulatory
body, is necessary or desirable as a condition, or in connection
with, the granting of such rights or the issue of shares in
connection therewith, such rights may not be exercised or paid in
whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
<PAGE> 15
15. The parties hereto agree that any action relating to
this stock option agreement shall be instituted and processed in
the courts in San Francisco County, California, and each party
waives the right to change of venue. Further, the parties agree
that any action relating to their agreement shall be submitted to
final and binding arbitration pursuant to the provisions of the
California Civil Code.
16. Nothing in this Agreement shall be construed as giving
the Employee the right to be retained as an Employee or as
impairing the rights of the Company to terminate the employee's
service.
17. Whenever shares of Common Stock are to be issued in
satisfaction of the rights conferred hereby, the Company shall
have the right to require the optionee to remit to the Company an
amount sufficient to satisfy federal, state and local withholding
tax requirements prior to the delivery of any certificate or
certificates for such shares. Whenever payments are to be made
in cash, such payments shall be net of an amount sufficient to
satisfy federal, state and local withholding tax requirements.
IN WITNESS HEREOF, the parties hereto have executed
this Agreement, in duplicate, the day and year first above
written.
CIRCLE INTERNATIONAL GROUP, INC.
By___________________________
ACCEPTED:
________________________________
Employee Signature
________________________________
________________________________
Address
<PAGE> 16
EXHIBIT 4.3
THE CIRCLE INTERNATIONAL GROUP, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, made as of this __th day of ____, 199_,
between Circle International Group, Inc., a Delaware corporation
(the "Company") and ____________________ (the "Employee").
WHEREAS, the Company has adopted Circle International
Group, Inc. 1994 Omnibus Equity Incentive Plan (the "Plan"),
providing for the granting of restricted shares of Common Stock
of the Company ("Restricted Stock") to Employees of the Company
and its Subsidiaries; and
WHEREAS, the Human Resources and Compensation Committee
(the "Committee"), which is responsible for the administration of
the Plan, has authorized the granting of shares of Restricted
Stock to the Employee; and
WHEREAS, this Agreement is prepared in conjunction with
and under the terms of the Plan; although all of the terms of the
Plan and the definitions used in the Plan have not been set forth
herein, such terms and definitions are incorporated herein and
made a part hereof by reference; and
WHEREAS, the provisions of the Plan shall govern any
interpretation of this Agreement; and
WHEREAS, the Employee has accepted the grant of
Restricted Stock and agreed to the terms and conditions stated
herein.
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Award. The Company hereby grants to the
Employee an award of ______________ shares of Restricted Stock on
the date hereof, subject to all of the terms and conditions in
this Agreement and the Plan.
2. Shares Held in Escrow. Unless and until the shares
of Restricted Stock shall have vested in the manner set forth in
paragraphs 3, 4 or 5, such shares shall be issued in the name of
the Employee and held by the Secretary of the Company as escrow
agent (the "Escrow Agent"), and shall not be sold, transferred or
otherwise disposed of and shall not be pledged or otherwise
hypothecated. The Company may instruct the transfer agent for its
Common Stock to place a legend on the certificates representing
the Restricted Stock or otherwise note its records as to the
restrictions on transfer set forth in this Agreement and the
Plan. The certificate or certificates representing such shares
shall be delivered by the Escrow Agent to the Employee only after
the shares have vested and all other terms and conditions in this
Agreement have been satisfied.
<PAGE> 17
3. Certificate Legend. In addition to any legends
placed on the certificates pursuant to paragraph 2 of this
Agreement, and until the restrictions on such shares shall have
lapsed, each certificate representing shares of Restricted Stock
shall bear the following legend:
"The sale or other transfer of the shares of stock
represented by this certificate, whether voluntary,
involuntary, or by operation of law, is subject to
certain restrictions on transfer as set forth in Circle
International Group, Inc. 1994 Omnibus Equity Incentive
Plan, and in a Restricted Stock Agreement. A copy of
the Plan and such Restricted Stock Agreement may be
obtained from the Chief Financial Officer of Circle
International Group, lnc."
4. Restriction on Shares. All of the ________ shares
granted hereunder shall vest on _________ ____, 199_. On such
vesting date, all restrictions set forth in this Agreement shall
terminate (except with respect to shares which have been
previously forfeited pursuant to paragraph 6 hereof) and the
Escrow Agent shall deliver the certificates evidencing the shares
to the Employee.
5. Committee Discretion. The Committee may decide, in
its absolute discretion, to accelerate the lapse of any
restrictions on the balance, or some lesser portion of the
balance, of shares of Restricted Stock at any time. If so
accelerated, such restrictions shall be considered to have lapsed
as of the date specified by the Committee.
6. Forfeiture. Except as provided in paragraphs 4 and
5, the shares of Restricted Stock as to which restrictions have
not lapsed at the time of the Employee's termination of service
for any reason to the Company shall thereupon be forfeited and
automatically transferred to and reacquired by the Company at no
cost to the Company. For purposes of this Section 6, the Employee
will not be deemed to have terminated his service with the
Company until such time as he is no longer serving the Company in
any of the following capacities: officer, employee or director.
The Employee hereby appoints the Escrow Agent with full power of
substitution, as the Employee's true and lawful attorney-in-fact
with irrevocable power and authority in the name and on behalf of
the Employee to take any action and execute all documents and
instruments, including, without limitation, stock powers which
may be necessary to transfer the certificate or certificates
evidencing such forfeited shares to the Company upon such
termination of employment.
7. Continuous Service Required. The restrictions on the
shares of Restricted Stock shall not lapse in accordance with any
of the provisions of this Agreement unless the Employee's service
with the Company in the capacity of officer, employee or director
shall have been continuous from the date of the award until the
date such lapse is deemed to have occurred.
8. Withholding of Taxes. Notwithstanding anything in
this Agreement to the contrary, no certificate representing
Restricted Stock may be released from the escrow established
pursuant to paragraph 2 of this Agreement unless and until the
Employee shall have delivered to the Company or its designated
Subsidiary the full amount of any federal, state or local income
or other taxes which the Company or such Subsidiary may be
required by law to withhold with respect to such shares. Pursuant
to such procedures as may be established by the Committee in its
discretion, the Employee may elect to satisfy any such income tax
withholding requirement by having the Company withhold shares of
Common Stock otherwise deliverable to the Employee or by
delivering to the Company already-owned shares of Common Stock,
provided that the Committee, in its discretion, may disallow
satisfaction of such withholding by the delivery or withholding
of stock.
<PAGE> 18
9. After the Death of the Employee. Any distribution or
delivery to be made to the Employee under this Agreement shall,
if the Employee is then deceased, be made to the Employee's
designated beneficiary, or if no such beneficiary survives the
Employee, the person or persons entitled to such distribution or
delivery under the Employee's will or, if the Employee shall fail
to make testamentary disposition of such property, his or her
legal representative. Any transferee must furnish the Company
with (a) written notice of his or her status as transferee, and
(b) evidence satisfactory to the Company to establish the
validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.
10. Conditions to Issuance of Restricted Shares. The
shares of Restricted Stock deliverable to the Employee may be
either previously authorized but unissued shares or issued shares
which have been reacquired by the Company. The Company shall not
be required to issue any certificate or certificates for shares
of stock hereunder prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all
stock exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or
under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the
Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance
from any state or federal governmental agency, which the
Committee shall, in its absolute discretion, determine to be
necessary or advisable; and
(d) The lapse of such reasonable period of time
following the date of grant of the Restricted Stock as the
Committee may establish from time to time for reasons of
administrative convenience.
11. No Rights of Stockholder. Neither the Employee nor
any person claiming under or through the Employee shall be, or
have any of the rights or privileges of, a stockholder of the
Company in respect of any shares deliverable hereunder unless and
until certificates representing such shares shall have been
issued, recorded on the records of the Company or its transfer
agents or registrars, and delivered to the Employee or the Escrow
Agent. Except as provided in paragraph 12, after such issuance,
recordation and delivery, the Employee shall have all the rights
of a stockholder of the Company with respect to voting such
shares and receipt of dividends and distributions on such shares.
12. Changes in Stock. In the event that as a result
of a stock dividend, stock split, reclassification,
recapitalization, combination of shares or the adjustment in
capital stock of the Company or otherwise, or as a result of a
merger, consolidation, spin-off or other reorganization, the
Company's Common Stock shall be increased, reduced or otherwise
changed, and by virtue of any such change the Employee shall in
his or her capacity as owner of shares of Restricted Stock which
have been awarded to him or her (the "Prior Shares") be entitled
to new or additional or different shares of stock or securities
(other than rights or warrants to purchase securities), such new
or additional' or different shares or securities shall thereupon
be considered to be Restricted Stock and shall be subject to all
of the restrictions and other conditions which were applicable to
the Prior Shares pursuant to the Plan. If the Employee receives
rights or warrants with respect to any Prior Shares, such rights
or warrants may be held or exercised by the Employee, provided
that until such exercise any such rights or warrants and after
such exercise any shares or other securities acquired by the
exercise of such rights or warrants shall be considered to be
subject to all of the restrictions and other conditions which
were applicable to the Prior Shares pursuant to the Plan. The
Committee in its absolute discretion at any time may accelerate
the lapse of restrictions on all or any portion of such new or
additional shares of stock or securities, rights or warrants to
purchase securities or shares or other securities acquired by the
exercise of such rights or warrants.
<PAGE> 19
13. Plan Governs. This Agreement is subject to all the
terms and provisions of the Plan. In the event of a conflict
between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan shall govern.
Terms used in this Agreement that are not defined in this
Agreement shall have the meaning set forth in the Plan.
14. Committee Authority. The Committee shall have the
power to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of
the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final
and binding upon the Employee, the Company and all other
interested persons, and shall be given the maximum deference
permitted by law. No member of the Committee shall be personally
liable for any action, determination or interpretation made in
good faith with respect to the Plan or this Agreement.
15. No Effect on Employment. The terms of the
Employee's employment shall be determined from time to time by
the Company, or the Subsidiary employing the Employee, as the
case may be, and the Company, or the Subsidiary employing the
Employee, as the case may be, shall have the right, which is
hereby expressly reserved, to terminate or change the terms of
the employment of the Employee at any time for any reason
whatsoever, with or without good cause, unless otherwise governed
by a written Employment Agreement entered into between Employee
and the Company or the Subsidiary employing the Employee, as the
case may be.
16. No Effect on Participation. Nothing herein
contained shall affect the Employee's right to participate in and
receive benefits under and in accordance with the then current
provisions of any pension, insurance or other employee welfare
plan or program of the Company or any Subsidiary.
17. Non-Transferability of Award. Except as otherwise
herein provided, the shares of Restricted Stock herein granted
and the rights and privileges conferred hereby shall not be
transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and shall not be
subject to sale under execution, attachment or similar process.
Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of such award, or of any right or privilege
conferred hereby, contrary to the provisions hereof, or upon any
attempted sale under any execution, attachment or similar process
upon the rights and privileges conferred hereby, such award and
the rights and privileges conferred hereby shall immediately
become null and void.
18. Binding Agreement. Subject to the limitation on the
transferability of the Restricted Stock contained in paragraph
17, this Agreement shall be binding upon and inure to the benefit
of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
19. Addresses for Notices. Any notice to be given to
the Company under the terms of this Agreement shall be addressed
to the Company, in care of its Chief Financial Officer, at 260
Townsend Street, San Francisco, CA 94107, or at such other
address as the Company may hereafter designate in writing. Any
notice to be given to the Employee shall be addressed to the
Employee at the address set forth beneath the Employee's
signature hereto, or at such other address as the Employee may
hereafter designate in writing. Any such notice shall be deemed
to have been duly given if and when enclosed in a properly sealed
envelope, addressed as aforesaid, registered or certified and
deposited, postage and registry fee prepaid, in a United States
post office.
<PAGE> 20
20. Captions. The captions provided herein are for
convenience only and are not to serve as a basis for any
interpretation or construction of this Agreement.
21. Severability of Agreement. In the event that any
provision in this Agreement shall be held invalid or
unenforceable, such provision shall be severable from, and such
invalidity or unenforceability shall not be construed to have any
effect on, the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement, in duplicate, the day and year first above written.
CIRCLE INTERNATIONAL GROUP, INC.
By_____________________________
ACCEPTED:
_____________________________
Employee Signature
_____________________________
_____________________________
Address
_____________________________
Social Security Number
<PAGE> 21
EXHIBIT 4.4
THE CIRCLE INTERNATIONAL GROUP, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT made and entered into this _____th day
of_____________, 199__ by and between Circle International Group,
Inc., a Delaware corporation (the "Company"), and ______________,
an employee of the Company or of one of its subsidiaries (the
"Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1994 Omnibus
Equity Incentive Plan (the "Plan"), providing for the granting to
its employees of stock options relating to shares of its common
stock (the "Common Stock"); and
WHEREAS, the Plan provides for the grant of options
which are intended to be incentive stock options within the
meaning of Section 422A ("incentive stock options") of the
Internal Revenue Code of 1986, as amended; and
WHEREAS, the Employee is a key employee who is in a
position to make an important contribution to the long-term
performance of the Company.
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Option. The Company hereby grants to the
Employee an incentive stock option to purchase ____ shares of the
Common Stock at the price set forth in Paragraph 2 hereof, on the
terms and conditions hereinafter stated.
<PAGE> 22
2. Exercise Price. The purchase price per share is
($_______) (which is the fair market value of such Common Stock
at date of grant), which shall be paid in the legal tender of the
United States.
3. Number of Shares. The number of shares of Common
Stock covered hereby and the price per share thereof shall be
proportionately adjusted for any increase or decrease in the
number of issued and outstanding shares of Common Stock resulting
from a subdivision or consolidation of shares or the payment of a
stock dividend in excess of 2% or any other increase or decrease
in the number of issued and outstanding shares of Common Stock
effected without receipt of consideration by the Company.
Subject to any required action of the stockholders of
the Company, if the Company shall be the surviving corporation in
any merger or consolidation, this option (to the extent that it
is still outstanding) shall pertain to and apply to the
securities of which a holder of the same number of shares of
Common Stock that are subject to the option would have been
entitled. To the extent that the foregoing adjustments relate to
stock or securities of the Company, any such adjustments shall be
made by the Human Resources and Compensation Committee (the
"Committee"), whose determination in that respect shall be final,
binding and conclusive.
In the event of a change in control (as defined
below) any and all outstanding options shall automatically vest
in full and shall be immediately exercisable without regards to
any limitations on the date of the occurrence of the change in
control. A change in control shall be deemed to have occurred
if:
(a) as a result of or in connection with any tender
offer, exchange offer, merger, or acquisition other
business combination, sale of assets or contested
election or combination of the foregoing, the persons
who were Directors of the company just prior to such
event cease to constitute a majority of the Board of
the Company or its successor;
<PAGE> 23
(b) the stockholders of the company approve a merger
or consolidation of the Company with another Company
and as a result of such merger or consolidation less
than 70% of the outstanding voting securities of the
surviving or resulting Company shall then be owned in
the aggregate by the former stockholders of the
Company, other than (A) any party to such merger or
consolidations, or (B) any affiliates to any such
party;
(c) a tender offer or exchange offer is made and
consummated for the ownership of securities of the
Company representing 50% or more of the combined voting
power of the Company's then outstanding voting
securities, or
(d) any person is or becomes the beneficial owner,
directly or indirectly, of at least 20% of the combined
voting power of the Company's outstanding securities,
except by reason of a repurchase by the Company of its
securities.
(e) a plan of liquidation or an agreement for the sale
or transfer of substantially all of the Company's
assets to another Company that is not a wholly owned
Company of the Company.
This provision may not be amended after the date of a Change in
Control without the written consent of a majority in both number
and interest of the participants in this Plan, other than those
participants who are both (1) not employed by the Company as of
the date of the Change in Control and (2) not receiving nor could
have commenced receiving benefits under the Plan as of the date
of the Change in Control, both immediately prior to the Change in
control and at the date of such amendment.
<PAGE> 24
The grant of this option shall not affect in any way
the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business or
assets.
4. Commencement of Exercisability. This option may
not be exercised in whole or in part until one year has elapsed
from the date of this Agreement. Subject to the conditions
stated herein, the right to exercise this option shall accrue in
installments as follows:
(i) During the period of 12 months beginning one
year after the date of this Agreement, this option may be
exercised to the extent of 25% of the shares subject to option;
(ii) During the period of 12 months beginning
_______, 199_, this option may be exercised to the extent of 25%
of the shares subject to option plus the shares as to which the
right to exercise this option has previously accrued but has not
been exercised.
(iii) During the period of 12 months beginning
_______, 199_, this option may be exercised to the extent of 25%
of the shares subject to option plus the shares as to which the
right to exercise this option has previously accrued but has not
been exercised.
(iv) During the period of 48 months beginning
_______, 199_, this option may be fully exercised to the extent
that it has not previously been exercised.
No partial exercise of this option will be permitted
for less than ten shares.
<PAGE> 25
5. Termination of Option. In the event of termination
of the Employee's employment for any reason other than his death,
this option shall immediately terminate; provided, however, that
if such cessation of employment is with the consent of the Board
of Directors, expressed in the form of a resolution, or is
pursuant to retirement under the provisions of any pension,
profit sharing or other retirement plan of the Company then in
effect, or is on account of permanent illness or disability, this
option may be exercised (subject to the provisions of Paragraph
12 hereof) within three months after the date he ceases to be an
employee of the Company, but only to the extent that it was
exercisable on the date of such cessation of employment.
6. Persons Eligible to Exercise. This option shall be
exercisable during the Employee's lifetime only by him and shall
be nontransferable by the Employee otherwise than by will or the
applicable laws of descent and distribution, or by a beneficiary
designation made in a form and manner acceptable to the
Committee.
7. After the Death of Employee. In the event of the
Employee's death while in the employ of the Company, or during a
three-month period following termination of employment during
which the Employee is permitted to exercise this option pursuant
to Paragraph 5 hereof, this option may be exercised (subject to
the provisions of Paragraph 12 hereof) at any time within one
year after the Employee's death by the Employee's transferee to
the same extent as the Employee could have exercised the option
immediately prior to the employee's death. The Employee's
transferee shall be the person or persons, designated by the
Employee on a Beneficiary Designation Form furnished by the
Committee, provided, however, that if at the time of the
Employee's death, there is no effective Beneficiary Designation
Form on file with the Committee, the Employee's transferee shall
be deemed to be the executor or administrator of the employee's
estate or any person who shall have acquired the option from the
Employee by the employee's will or the applicable law of descent
and distribution. Any such transferee exercising this option
must furnish the Company upon request of the Committee (a)
written notice of his status as transferee, (b) evidence
satisfactory to the Company to establish the validity of the
transfer of the option in compliance with any laws or regulations
pertaining to said transfer, and (c) written acceptance of the
terms and conditions of the option as prescribed in this
Agreement.
<PAGE> 26
8. Exercise of Option. This option may be exercised
by the person then entitled to do so as to any share which may
then be purchased by giving written notice of exercise to the
Company, specifying the number of full shares to be purchased and
accompanied by full payment of the purchase price thereof and the
amount of any income tax the Company is required by law to
withhold by reason of such exercise.
9. No Rights of Stockholder. Neither the Employee nor
any person claiming under or through him shall be or have any of
the rights or privileges of a stockholder of the Company in
respect of any of the shares issuable upon the exercise of the
option, until the date of the receipt of payment by the Company
and the issuance of a stock certificate to him for such shares in
accordance with the terms hereof.
10. Addresses For Notices. Any notice to be given to
the Company under the terms of this Agreement shall be addressed
to Circle International Group, Inc., in care of its Corporate
Secretary, at 260 Townsend Street, San Francisco, California
94107, or at such other address as the Company may hereinafter
designate in writing. Any notice to be given to the Employee
shall be addressed to the Employee at the address set forth
beneath his signature hereto, or at any such other address as the
Employee may hereafter designate in writing. Any such notice
shall be deemed to have been duly given if and when enclosed in a
properly sealed envelope, addressed as aforesaid, registered and
deposited, postage and registry fee prepaid, in a post office or
branch post office regularly maintained by the United States
Government.
<PAGE> 27
11. Non-Transferability of Option. Except as
otherwise stated herein, the option herein granted and the
rights and privileges conferred hereby shall not be transferred,
assigned, pledged or hypothecated in any way (whether by
operation or law or otherwise) and shall not be subject to sale
under execution, attachment or similar process upon the rights
and privileges conferred hereby. Upon any attempt to transfer,
assign, pledge or otherwise dispose of said option, or of any
right or privilege conferred hereby, contrary to the provisions
hereof, or upon any attempted sale under any execution,
attachment or similar process upon the rights and privileges
conferred hereby shall immediately become null and void.
12. Maximum Term of Option. Notwithstanding any other
provision of this Agreement, this option is not exercisable after
the expiration of eight years and three months from the date
hereof.
13. Binding Agreement. Subject to the limitations on
transferability contained herein, this Agreement shall be binding
upon and inure to the benefit of the heirs, legatees, legal
representatives, successors and assigns of the parties hereto.
14. Suspension of Exercisability. The rights awarded
hereby are subject to the requirement that, if at any time the
Committee shall determine, in its sole discretion, that the
listing, registration or qualification of the shares of Common
Stock subject to such rights upon any securities exchange or
under any state or federal law, or the consent or approval of any
government regulatory body, is necessary or desirable as a
condition, or in connection with, the granting of such rights or
the issue of shares in connection therewith, such rights may not
be exercised or paid in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee.
<PAGE> 28
15. Arbitration. The parties hereto agree that any
action relating to this stock option agreement shall be
instituted and processed in the courts in San Francisco County,
California, and each party waives the right to change of venue.
Further, the parties agree that any action relating to their
agreement shall be submitted to final and binding arbitration
pursuant to the provisions of the California Civil Code.
16. Option Has No Effect On Employment. Nothing in
this Agreement shall be construed as giving the Employee the
right to be retained as an Employee, as impairing the rights of
the Company to terminate the employee's service, or as altering
the at-will employment status of employee, as the case may be.
The Company shall have the right, which is expressly reserved, to
terminate or change the terms of the employment of the Employee
at any time for any reason whatsoever, with or without good
cause.
17. Payment of Tax. Whenever shares of Common Stock
are to be issued in satisfaction of the rights conferred hereby,
the Company shall have the right to require the optionee to remit
to the Company an amount sufficient to satisfy federal, state and
local withholding tax requirements prior to the delivery of any
certificate or certificates for such shares. Whenever payments
are to be made in cash, such payments shall be net of an amount
sufficient to satisfy federal, state and local withholding tax
requirements.
18. Plan Governs. This Agreement is subject to all
terms and provisions of the Plan. In the event of a conflict
between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan shall govern.
Terms used in this Agreement that are not defined in this
Agreement shall have the meaning set forth in the Plan.
<PAGE> 29
19. Committee Authority. The Committee shall have the
power to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of
the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final
and binding upon Employee, the Company and all other interested
persons. No member of the Committee shall be personally liable
for any action, determinations or interpretation made in good
faith with respect to the Plan or this Agreement.
IN WITNESS HEREOF, the parties hereto have executed
this Agreement, in duplicate, the day and year first above
written.
CIRCLE INTERNATIONAL GROUP, INC.
By___________________________
ACCEPTED:
________________________________
Employee Signature
________________________________
________________________________
Address
<PAGE> 30
EXHIBIT 5.1
June 3, 1998
The Circle International Group, Inc.
260 Townsend Street
San Francisco, CA 94107-0933
Re: The Circle International Group, Inc./
Registration Statement on Form S-8
Ladies and Gentlemen:
At your request, we are rendering this opinion in
connection with the proposed issuance pursuant to The Circle
International Group, Inc. 1994 Omnibus Equity Incentive Plan (the
"Plan"), of up to 500,000 additional shares of common stock
("Common Stock"), of The Circle International Group, Inc., a
Delaware corporation (the "Company").
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 500,000 additional shares of Common Stock to be issued by the
Company pursuant to the Plan are validly authorized shares of
Common Stock, and, when issued in accordance with the provisions
of the Plan, will be legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to this Registration Statement on Form S-8 and to the use
of our name wherever it appears in said Registration Statement.
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> 31
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Circle International Group, Inc. and
subsidiaries on Form S-8 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.
/s/ DELOITTE & TOUCHE LLP
-------------------------
DELOITTE & TOUCHE LLP
San Francisco, California
June 8, 1998
