As filed with the Securities and Exchange Commission on May 19, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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)
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Delaware 94-1740320
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
260 Townsend Street
San Francisco, California 94107-0933 94107-0933
(Address of Principal Executive Offices) (Zip Code)
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Circle International Group, Inc.
Employee Stock Purchase Plan
(Full Title of the Plan)
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David I. Beatson
Chief Executive Officer
Circle International Group, Inc.
260 Townsend Street
San Francisco, CA
94107-0933
(Name and Address of Agent For Service)
(415) 978-0600
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Robert H. Kennis, Esq.
General Counsel & Secretary
Circle International Group, Inc.
260 Townsend Street
San Francisco, CA 94107-0933
(415) 978-0600
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount of
Securities to be To Be Maximum Maximum Registration
Registered Registered Offering Aggregate Fee
Registered Price Per Offering
Share (1) Price (1)
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Common Stock, (2)
par value $1.00 per 250,000 $21.53 $5,382,500 $1,496.34
per share shares
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(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share
and the proposed maximum aggregate offering price have been calculated on
the basis of $21.53 per share, the average of the high and low price of
the Common Stock on the Nasdaq National Market on May 18, 1999.
(2) Includes Preferred Stock Purchase Rights which, prior to the occurrence of
certain events, will not be exercisable or evidenced separately from the
Common Stock.
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<PAGE>
PART I
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part
I of Form S-8.
PART II
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Circle International Group, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference to this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K (File No 0-8664) for the
fiscal year ended December 31, 1998.
(b) The description of the Registrant's common stock and preferred stock
purchase rights contained in the registration statements filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
on Form 8-A, including any subsequent amendments or reports filed for
the purpose of updating that information.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which 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
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") authorizes a Delaware corporation to indemnify officers,
directors, employees and agents of the corporation, in connection with actual or
threatened actions, suits or proceedings provided that such officer, director,
employee or agent acted in good faith and in a manner such officer reasonably
believed to be in or not opposed to the corporation's best interests, and, for
criminal proceedings, had no reasonable cause to believe his or her conduct was
unlawful. This authority is sufficiently broad to permit indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
The Registrant's Certificate of Incorporation, as amended, provides that
the Registrant's directors shall not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, to the fullest extent permitted by Delaware Law. The Registrant's
By-laws provide for indemnification of officers and directors to the fullest
extent permitted by Delaware Law. The Registrant maintains insurance policies
that insure its officers and directors against certain liabilities. In addition,
the Registrant has, and intends in the future to enter into, agreements to
provide indemnification for directors and officers in addition to that contained
in the Certificate of Incorporation, as amended, and By-laws.
2
<PAGE>
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit
Number Name
------ ----
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
99.1 Circle International Group, Inc. Employee Stock Purchase Plan.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set for the in the "Calculation of Registration Fee"
table in the effective Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to 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.
3
<PAGE>
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on the 12 of
May, 1999.
CIRCLE INTERNATIONAL GROUP, INC.
(Registrant)
By:/S/ David I. Beatson
--------------------------------
David I. Beatson
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
--------- ----- ----
Chairman of the Board of
/S/ David I. Beatson Directors, President and May 12, 1999
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David I. Beatson Chief Executive Officer
(Principal Executive Officer)
Chief Financial Officer
/S/ Janice Kerti Senior Vice President May 12, 1999
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Janice Kerti (Principal Financial Officer
and Principal Accounting Officer)
5
<PAGE>
Signature Title Date
--------- ----- ----
/S/ David I. Beatson Director May 12, 1999
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David I. Beatson
/S/ Wesley J. Fastiff Director May 12, 1999
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Wesley J. Fastiff
/S/ Peter Gibert Director May 12, 1999
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Peter Gibert
Edwin J. Holman Director
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Edwin J. Holman
/S/ John M. Kaiser Director May 12, 1999
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John M. Kaiser
/S/ John M. Lillie Director May 12, 1999
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John M. Lillie
/S/ Ray C. Robinson, Jr. Director May 12, 1999
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Ray C. Robinson, Jr.
A majority of the members of the Board of Directors.
<PAGE>
EXHIBIT INDEX
Exhibit
Number Name
------ ----
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
99.1 Circle International Group, Inc. Employee Stock Purchase Plan.
<PAGE>
EXHIBIT 5.1
May 17, 1999
Circle International Group, Inc.
260 Townsend Street
San Francisco, California 94107-0933
Re: Registration Statement on Form S-8 - Circle International
Group, Inc. Employee Stock Purchase Plan
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Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with the
proposed issuance pursuant to the Circle International Group, Inc. Employee
Stock Purchase Plan (the "Plan"), of up to 250,000 shares of common stock, $1.00
par value ("Common Stock"), of 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 shares 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 the above
referenced Registration Statement on Form S-8. 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
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Circle International Group, Inc. on Form S-8 of our report dated March 5, 1999,
appearing in the Annual Report on Form 10-K of Circle International Group, Inc.
for the year ended December 31, 1998.
/S/ Deloitte and Touche LLP
San Francisco, California
May 14, 1999
<PAGE>
EXHIBIT 99.1
CIRCLE INTERNATIONAL GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
TABLE OF CONTENTS
Page
Section 1 PURPOSE.......................................................1
Section 2 DEFINITIONS...................................................1
2.1 "1934 Act".......................................................1
2.2 "Board"..........................................................1
2.3 "Code"...........................................................1
2.4 "Committee"......................................................1
2.5 "Common Stock"...................................................1
2.6 "Company"........................................................1
2.7 "Compensation"...................................................1
2.8 "Eligible Employee"..............................................1
2.9 "Employee".......................................................2
2.10 "Employer" or "Employers"........................................2
2.11 "Enrollment Date"................................................2
2.12 "Grant Date".....................................................2
2.13 "Participant"....................................................2
2.14 "Plan"...........................................................2
2.15 "Purchase Date"..................................................2
2.16 "Subsidiary".....................................................2
Section 3 SHARES SUBJECT TO THE PLAN....................................2
3.1 Number Available.................................................2
3.2 Adjustments......................................................2
Section 4 ENROLLMENT....................................................3
4.1 Participation....................................................3
4.2 Payroll Withholding..............................................3
Section 5 OPTIONS TO PURCHASE COMMON STOCK..............................3
5.1 Grant of Option..................................................3
5.2 Duration of Option...............................................3
5.3 Number of Shares Subject to Option...............................3
5.4 Other Terms and Conditions.......................................3
-I-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
Section 6 PURCHASE OF SHARES............................................4
6.1 Exercise of Option...............................................4
6.2 Delivery of Shares...............................................4
6.3 Exhaustion of Shares.............................................4
Section 7 WITHDRAWAL....................................................4
7.1 Withdrawal.......................................................4
Section 8 CESSATION OF PARTICIPATION....................................5
8.1 Termination of Status as Eligible Employee.......................5
Section 9 DESIGNATION OF BENEFICIARY....................................5
9.1 Designation......................................................5
9.2 Changes..........................................................5
9.3 Failed Designations..............................................5
Section 10 ADMINISTRATION................................................5
10.1 Plan Administrator...............................................5
10.2 Actions by Committee.............................................5
10.3 Powers of Committee..............................................5
10.4 Decisions of Committee...........................................6
10.5 Administrative Expenses..........................................6
10.6 Eligibility to Participate.......................................7
10.7 Indemnification..................................................7
Section 11 AMENDMENT, TERMINATION, AND DURATION..........................7
11.1 Amendment, Suspension, or Termination............................7
11.2 Duration of the Plan.............................................7
Section 12 GENERAL PROVISIONS............................................7
12.1 Participation by Subsidiaries....................................7
12.2 Inalienability...................................................7
12.3 Severability.....................................................7
12.4 Requirements of Law..............................................8
12.5 Compliance with Rule 16b-3.......................................8
12.6 No Enlargement of Employment Rights..............................8
12.7 Apportionment of Costs and Duties................................8
-II-
<PAGE>
TABLE OF CONTENTS
(continued)
Page
12.8 Construction and Applicable Law..................................8
12.9 Captions.........................................................8
EXECUTION ..............................................................8
-III-
<PAGE>
CIRCLE INTERNATIONAL GROUP, INC.
EMPLOYEE STOCK PURCHASE PLAN
section 1
PURPOSE
Circle International Group, Inc. hereby establishes the Circle
International Group, Inc. Employee Stock Purchase Plan, effective as of May 11,
1999, in order to provide eligible employees of the Company and its
participating Subsidiaries (including Subsidiaries based outside the United
States) with the opportunity to purchase Common Stock through payroll
deductions. The Plan is intended to qualify as an employee stock purchase plan
under Section 423(b) of the Code.
section 2
DEFINITIONS
2.1 "1934 Act" means the Securities Exchange Act of 1934, as
amended. Reference to a specific Section of the 1934 Act or regulation
thereunder shall include such Section or regulation, any valid regulation
promulgated under such Section, and any comparable provision of any future
legislation or regulation amending, supplementing or superseding such Section or
regulation.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
Reference to a specific Section of the Code or regulation thereunder shall
include such Section or regulation, any valid regulation promulgated under such
Section, and any comparable provision of any future legislation or regulation
amending, supplementing or superseding such Section or regulation.
2.4 "Committee" shall mean the committee appointed by the Board to
administer the Plan. Any member of the Committee may resign at any time by
notice in writing mailed or delivered to the Secretary of the Company. As of the
effective date of the Plan, the Plan shall be administered by the Human
Resources, Compensation and Nominating Committee of the Board.
2.5 "Common Stock" means the common stock of the Company.
2.6 "Company" means Circle International Group, Inc., a Delaware
corporation.
2.7 "Compensation" means a Participant's base salary or regular
wages (including sick pay and vacation pay). The Committee, in its discretion,
may (on a uniform and nondiscriminatory basis) establish a different definition
of Compensation prior to an Enrollment Date for all options to be granted on
such Enrollment Date.
2.8 "Eligible Employee" means every Employee of an Employer, except
(a) any Employee who immediately after the grant of an option under the Plan,
would own stock and/or hold outstanding options to purchase stock possessing
five percent (5%) or more of the total combined voting power or value of all
classes of stock of the Company or of any Subsidiary of the Company (including
stock attributed to such Employee pursuant to Section 424(d) of the Code), or
(b) as provided in the following sentence. The Committee, in its discretion,
from time to time may, prior to an Enrollment Date for all options to be granted
on such Enrollment Date, determine (on a uniform and nondiscriminatory basis)
that an Employee shall not be an Eligible Employee if he or she: (1) has not
completed at least two years of service since his or her last hire date (or such
lesser period of time as may be determined by the Committee in its discretion),
(2) customarily works not more than 20 hours per week (or such lesser period of
time as may be determined by the Committee in its discretion), (3) customarily
works not more than 5 months per calendar year (or such lesser period of time as
may be determined by the Committee in its discretion), or (4) is an officer or
other manager.
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<PAGE>
2.9 "Employee" means an individual who is a common-law employee of
any Employer, whether such employee is so employed at the time the Plan is
adopted or becomes so employed subsequent to the adoption of the Plan.
2.10 "Employer" or "Employers" means any one or all of the Company,
Circle International, Inc. and those Subsidiaries which, with the consent of the
Board, have adopted the Plan.
2.11 "Enrollment Date" means such dates as may be determined by the
Committee (in its discretion and on a uniform and nondiscriminatory basis) from
time to time.
2.12 "Grant Date" means any date on which a Participant is granted
an option under the Plan.
2.13 "Participant" means an Eligible Employee who (a) has become a
Participant in the Plan pursuant to Section 4.1 and (b) has not ceased to be a
Participant pursuant to Section 8 or Section 9.
2.14 "Plan" means Circle International Group, Inc. Employee Stock
Purchase Plan, as set forth in this instrument and as hereafter amended from
time to time.
2.15 "Purchase Date" means such dates as may be determined by the
Committee (in its discretion and on a uniform and nondiscriminatory basis) from
time to time prior to an Enrollment Date for all options to be granted on such
Enrollment Date.
2.16 "Subsidiary" means any domestic or foreign corporation in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in the unbroken chain then owns
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
section 3
SHARES SUBJECT TO THE PLAN
3.1 Number Available. A maximum of 250,000 shares of Common Stock
shall be available for issuance pursuant to the Plan. Shares sold under the Plan
may be newly issued shares or treasury shares.
3.2 Adjustments. In the event of any reorganization,
recapitalization, stock split, reverse stock split, stock dividend, combination
of shares, merger, consolidation, offering of rights or other similar change in
the capital structure of the Company, the Board may make such adjustment, if
any, as it deems appropriate in the number, kind and purchase price of the
shares available for purchase under the Plan and in the maximum number of shares
subject to any option under the Plan.
2
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section 4
ENROLLMENT
4.1 Participation. Each Eligible Employee may elect to become a
Participant by enrolling or re-enrolling in the Plan effective as of any
Enrollment Date. In order to enroll, an Eligible Employee must complete, sign
and submit to the Company an enrollment form in such form, manner and by such
deadline as may be specified by the Committee from time to time (in its
discretion and on a nondiscriminatory basis). Any Participant whose option
expires and who has not withdrawn from the Plan automatically will be
re-enrolled in the Plan on the Enrollment Date immediately following the
Purchase Date on which his or her option expires.
4.2 Payroll Withholding. On his or her enrollment form, each
Participant must elect to make Plan contributions via payroll withholding from
his or her Compensation. Pursuant to such procedures as the Committee may
specify from time to time, a Participant may elect to have withholding equal to
a whole percentage from 1% to 15% (or such lesser percentage that the Committee
may establish from time to time for all options to be granted on any Enrollment
Date). A Participant may elect to increase or decrease his or her rate of
payroll withholding by submitting a new enrollment form in accordance with such
procedures as may be established by the Committee from time to time. A
Participant may stop his or her payroll withholding by submitting a new
enrollment form in accordance with such procedures as may be established by the
Committee from time to time. In order to be effective as of a specific date, an
enrollment form must be received by the Company no later than the deadline
specified by the Committee, in its discretion and on a nondiscriminatory basis,
from time to time. Any Participant who is automatically re-enrolled in the Plan
will be deemed to have elected to continue his or her contributions at the
percentage last elected by the Participant.
section 5
OPTIONS TO PURCHASE COMMON STOCK
5.1 Grant of Option. On each Enrollment Date on which the
Participant enrolls or re-enrolls in the Plan, he or she shall be granted an
option to purchase shares of Common Stock.
5.2 Duration of Option. Each option granted under the Plan shall
expire on the earliest to occur of (a) the completion of the purchase of shares
on the last Purchase Date occurring within 27 months of the Grant Date of such
option, (b) such shorter option period as may be established by the Committee
from time to time prior to an Enrollment Date for all options to be granted on
such Enrollment Date, or (c) the date on which the Participant ceases to be such
for any reason. Until otherwise determined by the Committee for all options to
be granted on an Enrollment Date, the period referred to in clause (b) in the
preceding sentence shall mean the period from the applicable Enrollment Date
through the last business day prior to the immediately following Enrollment
Date.
5.3 Number of Shares Subject to Option. The number of shares
available for purchase by each Participant under the option will be established
by the Committee from time to time prior to an Enrollment Date for all options
to be granted on such Enrollment Date.
5.4 Other Terms and Conditions. Each option shall be subject to the
following additional terms and conditions:
(a) payment for shares purchased under the option shall be made only
through payroll withholding under Section 4.2;
(b) purchase of shares upon exercise of the option will be
accomplished only in accordance with Section 6.1;
(c) the price per share under the option will be determined as
provided in Section 6.1; and
(d) the option in all respects shall be subject to such other terms
and conditions (applied on a uniform and nondiscriminatory basis), as the
Committee shall determine from time to time in its discretion.
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<PAGE>
section 6
PURCHASE OF SHARES
6.1 Exercise of Option. Subject to Section 6.2, on each Purchase
Date, the funds then credited to each Participant's account shall be used to
purchase whole shares of Common Stock. Any cash remaining after whole shares of
Common Stock have been purchased shall be carried forward in the Participant's
account for the purchase of shares on the next Purchase Date. The price per
Share of the Shares purchased under any option granted under the Plan shall be
eighty-five percent (85%) of the lower of:
(a) the average of the closing prices per Share on the three trading
days ending with the Grant Date for such option on the NASDAQ National
Market System; or
(b) the average of the closing prices per Share on the three trading
days ending with the Purchase Date on the NASDAQ National Market System;
provided, however, that if the average calculated under (a) or (b) is lower than
the closing price per Share on the Grant Date or the Purchase Date, as
applicable, the closing price per Share on the applicable date, rather than such
average, shall govern.
6.2 Delivery of Shares. As directed by the Committee in its sole
discretion, shares purchased on any Purchase Date shall be delivered directly to
the Participant or to a custodian or broker (if any) designated by the Committee
to hold shares for the benefit of the Participants. As determined by the
Committee from time to time, such shares shall be delivered as physical
certificates or by means of a book entry system.
6.3 Exhaustion of Shares. If at any time the shares available under
the Plan are over-enrolled, enrollments shall be reduced proportionately to
eliminate the over-enrollment. Such reduction method shall be "bottom up", with
the result that all option exercises for one share shall be satisfied first,
followed by all exercises for two shares, and so on, until all available shares
have been exhausted. Any funds that, due to over-enrollment, cannot be applied
to the purchase of whole shares shall be refunded to the Participants (without
interest thereon).
section 7
WITHDRAWAL
7.1 Withdrawal. A Participant may withdraw from the Plan by
submitting a completed enrollment form to the Company. A withdrawal will be
effective only if it is received by the Company by the deadline specified by the
Committee (in its discretion and on a uniform and nondiscriminatory basis) from
time to time. When a withdrawal becomes effective, the Participant's payroll
contributions shall cease and all amounts then credited to the Participant's
account shall be distributed to him or her (without interest thereon).
4
<PAGE>
section 8
CESSATION OF PARTICIPATION
8.1 Termination of Status as Eligible Employee. A Participant shall
cease to be a Participant immediately upon the cessation of his or her status as
an Eligible Employee (for example, because of his or her termination of
employment from all Employers for any reason). As soon as practicable after such
cessation, the Participant's payroll contributions shall cease and all amounts
then credited to the Participant's account shall be distributed to him or her
(without interest thereon). If a Participant is on a Company-approved leave of
absence, his or her participation in the Plan shall continue for so long as he
or she remains an Eligible Employee and has not withdrawn from the Plan pursuant
to Section 7.1.
section 9
DESIGNATION OF BENEFICIARY
9.1 Designation. Each Participant may, pursuant to such uniform and
nondiscriminatory procedures as the Committee may specify from time to time,
designate one or more Beneficiaries to receive any amounts credited to the
Participant's account at the time of his or her death. Notwithstanding any
contrary provision of this Section 9, Sections 9.1 and 9.2 shall be operative
only after (and for so long as) the Committee determines (on a uniform and
nondiscriminatory basis) to permit the designation of Beneficiaries.
9.2 Changes. A Participant may designate different Beneficiaries (or
may revoke a prior Beneficiary designation) at any time by delivering a new
designation (or revocation of a prior designation) in like manner. Any
designation or revocation shall be effective only if it is received by the
Committee. However, when so received, the designation or revocation shall be
effective as of the date the designation or revocation is executed (whether or
not the Participant still is living), but without prejudice to the Committee on
account of any payment made before the change is recorded. The last effective
designation received by the Committee shall supersede all prior designations.
9.3 Failed Designations. If a Participant dies without having
effectively designated a Beneficiary, or if no Beneficiary survives the
Participant, the Participant's Account shall be payable to his or her estate.
section 10
ADMINISTRATION
10.1 Plan Administrator. The Plan shall be administered by the
Committee. The Committee shall have the authority to control and manage the
operation and administration of the Plan.
10.2 Actions by Committee. Each decision of a majority of the
members of the Committee then in office shall constitute the final and binding
act of the Committee. The Committee may act with or without a meeting being
called or held and shall keep minutes of all meetings held and a record of all
actions taken by written consent.
10.3 Powers of Committee. The Committee shall have all powers and
discretion necessary or appropriate to supervise the administration of the Plan
and to control its operation in accordance with its terms, including, but not by
way of limitation, the following discretionary powers:
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(a) To interpret and determine the meaning and validity of the
provisions of the Plan and the options and to determine any question
arising under, or in connection with, the administration, operation or
validity of the Plan or the options;
(b) To determine any and all considerations affecting the
eligibility of any employee to become a Participant or to remain a
Participant in the Plan;
(c) To cause an account or accounts to be maintained for each
Participant;
(d) To determine the time or times when, and the number of shares
for which, options shall be granted;
(e) To establish and revise an accounting method or formula for the
Plan;
(f) To designate a custodian or broker to receive shares purchased
under the Plan and to determine the manner and form in which shares are to
be delivered to the designated custodian or broker;
(g) To determine the status and rights of Participants and their
Beneficiaries or estates;
(h) To employ such brokers, counsel, agents and advisers, and to
obtain such broker, legal, clerical and other services, as it may deem
necessary or appropriate in carrying out the provisions of the Plan;
(i) To establish, from time to time, rules for the performance of
its powers and duties and for the administration of the Plan;
(j) To adopt such procedures and subplans as are necessary or
appropriate to permit participation in the Plan by employees who are
foreign nationals or employed outside of the United States;
(k) To set requirements regarding the holding of shares purchased
under the Plan; and
(l) To delegate to any one or more of its members or to any other
person, severally or jointly, the authority to perform for and on behalf
of the Committee one or more of the functions of the Committee under the
Plan.
10.4 Decisions of Committee. All actions, interpretations, and
decisions of the Committee shall be conclusive and binding on all persons, and
shall be given the maximum possible deference allowed by law. Any remaining
disputes concerning the Plan shall be settled by final and binding arbitration
in San Francisco, California, in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association then
in effect.
10.5 Administrative Expenses. All expenses incurred in the
administration of the Plan by the Committee, or otherwise, including legal fees
and expenses, shall be paid and borne by the Employers, except any stamp duties
or transfer taxes applicable to the purchase of shares may be charged to the
account of each Participant. Any brokerage fees for the purchase of shares by a
Participant shall be paid by the Company, but fees and taxes (including
brokerage fees) for the transfer, sale or resale of shares by a Participant, or
the issuance of physical share certificates, shall be borne solely by the
Participant.
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10.6 Eligibility to Participate. No member of the Committee who is
also an employee of an Employer shall be excluded from participating in the Plan
if otherwise eligible, but he or she shall not be entitled, as a member of the
Committee, to act or pass upon any matters pertaining specifically to his or her
own account under the Plan.
10.7 Indemnification. Each of the Employers shall, and hereby does,
indemnify and hold harmless the members of the Committee and the Board, from and
against any and all losses, claims, damages or liabilities (including attorneys'
fees and amounts paid, with the approval of the Board, in settlement of any
claim) arising out of or resulting from the implementation of a duty, act or
decision with respect to the Plan, so long as such duty, act or decision does
not involve gross negligence or willful misconduct on the part of any such
individual.
section 11
AMENDMENT, TERMINATION, AND DURATION
11.1 Amendment, Suspension, or Termination. The Board, in its sole
discretion, may amend or terminate the Plan, or any part thereof, at any time
and for any reason. If the Plan is terminated, the Board, in its discretion, may
elect to terminate all outstanding options either immediately or upon completion
of the purchase of shares on the next Purchase Date, or may elect to permit
options to expire in accordance with their terms (and participation to continue
through such expiration dates). If the options are terminated prior to
expiration, all amounts then credited to Participants' accounts which have not
been used to purchase shares shall be returned to the Participants (without
interest thereon) as soon as administratively practicable.
11.2 Duration of the Plan. The Plan shall commence on the date
specified herein, and subject to Section 11.1 (regarding the Board's right to
amend or terminate the Plan), shall remain in effect thereafter.
section 12
GENERAL PROVISIONS
12.1 Participation by Subsidiaries. One or more Subsidiaries of the
Company may become participating Employers by adopting the Plan and obtaining
approval for such adoption from the Board. By adopting the Plan, a Subsidiary
shall be deemed to agree to all of its terms, including (but not limited to) the
provisions granting exclusive authority (a) to the Board to amend the Plan, and
(b) to the Committee to administer and interpret the Plan. An Employer may
terminate its participation in the Plan at any time. The liabilities incurred
under the Plan to the Participants employed by each Employer shall be solely the
liabilities of that Employer, and no other Employer shall be liable for benefits
accrued by a Participant during any period when he or she was not employed by
such Employer.
12.2 Inalienability. In no event may either a Participant, a former
Participant or his or her Beneficiary, spouse or estate sell, transfer,
anticipate, assign, hypothecate, or otherwise dispose of any right or interest
under the Plan; and such rights and interests shall not at any time be subject
to the claims of creditors nor be liable to attachment, execution or other legal
process. Accordingly, for example, a Participant's interest in the Plan is not
transferable pursuant to a domestic relations order.
12.3 Severability. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
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12.4 Requirements of Law. The granting of options and the issuance
of shares shall be subject to all applicable laws, rules, and regulations, and
to such approvals by any governmental agencies or securities exchanges as the
Committee may determine are necessary or appropriate.
12.5 Compliance with Rule 16b-3. Any transactions under this Plan
with respect to officers (as defined in Rule 16a-1 promulgated under the 1934
Act) are intended to comply with all applicable conditions of Rule 16b-3. To the
extent any provision of the Plan or action by the Committee fails to so comply,
it shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Committee. Notwithstanding any contrary provision of the Plan,
if the Committee specifically determines that compliance with Rule 16b-3 no
longer is required, all references in the Plan to Rule 16b-3 shall be null and
void.
12.6 No Enlargement of Employment Rights. Neither the establishment
or maintenance of the Plan, the granting of options, the purchase of shares, nor
any action of any Employer or the Committee, shall be held or construed to
confer upon any individual any right to be continued as an employee of the
Employer nor, upon dismissal, any right or interest in any specific assets of
the Employers other than as provided in the Plan. Each Employer expressly
reserves the right to discharge any employee at any time, with or without cause.
12.7 Apportionment of Costs and Duties. All acts required of the
Employers under the Plan may be performed by the Company for itself and its
Subsidiaries, and the costs of the Plan may be equitably apportioned by the
Committee among the Company and the other Employers. Whenever an Employer is
permitted or required under the terms of the Plan to do or perform any act,
matter or thing, it shall be done and performed by any officer or employee of
the Employers who is thereunto duly authorized by the Employers.
12.8 Construction and Applicable Law. The Plan is intended to
qualify as an "employee stock purchase plan" within the meaning of Section
423(b) of the Code. Any provision of the Plan which is inconsistent with Section
423(b) of the Code shall, without further act or amendment by the Company or the
Committee, be reformed to comply with the requirements of Section 423(b). The
provisions of the Plan shall be construed, administered and enforced in
accordance with such Section and with the laws of the State of California
(excluding California's conflict of laws provisions).
12.9 Captions. The captions contained in and the table of contents
prefixed to the Plan are inserted only as a matter of convenience, and in no way
define, limit, enlarge or describe the scope or intent of the Plan nor in any
way shall affect the construction of any provision of the Plan.
EXECUTION
IN WITNESS WHEREOF, Circle International Group, Inc., by its duly
authorized officer, has executed this Plan on the date indicated below.
CIRCLE INTERNATIONAL GROUP, INC.
Dated: May 17, 1999 By: /S/ David I. Beatson
---------------------------
David I. Beatson
President and Chief Executive Officer
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