As filed with the Securities and Exchange Commission on August 24, 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
(Address of Principal Executive Offices) (Zip Code)
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Circle International Group, Inc.
1999 Stock Option 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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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price Per Offering Amount of
Registered Registered Share (1) Price (1) Registration
- --------------------------------------------------------------------------------
Common Stocks (2)
par value, $1.00
per share....... 125,000 shares $25.75 $3,218,750.00 $895.00
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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 $25.75 per share, the average of the high and low price of the
Common Stock on the Nasdaq National Market on August 20, 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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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) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant document referred to in (a) above.
(c) 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.
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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. 1999 Stock Option 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.
(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.
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(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.
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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 23rd of
August, 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
Directors, President and
/S/ David I. Beatson Chief Executive Officer August 23, 1999
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David I. Beatson (Principal Executive Officer)
Chief Financial Officer
/S/ Janice Kerti Senior Vice President August 23, 1999
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Janice Kerti (Principal Financial Officer and
Principal Accounting Officer)
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Signature Title Date
--------- ----- ----
/S/ David I. Beatson Director August 23, 1999
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David I. Beatson
/S/ Wesley J. Fastiff Director August 23, 1999
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Wesley J. Fastiff
/S/ Peter Gibert Director August 23, 1999
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Peter Gibert
/S/ Edwin J. Holman Director August 23, 1999
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Edwin J. Holman
/S/ John M. Kaiser Director August 23, 1999
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John M. Kaiser
Director August 23, 1999
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John M. Lillie
/S/ Ray C. Robinson, Jr. Director August 23, 1999
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Ray C. Robinson, Jr.
A majority of the members of the Board of Directors.
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EXHIBIT INDEX
Exhibit
Number Name
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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. 1999 Stock Option Plan.
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EXHIBIT 5.1
August 24, 1999
Circle International Group, Inc.
260 Townsend Street
San Francisco, California 94107-0933
Re: Registration Statement on Form S-8 -
Circle International Group, Inc. 1999 Stock Option 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. 1999 Stock
Option Plan (the "Plan"), of up to 125,000 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,
ORRICK, HERRINGTON & SUTCLIFFE LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Circle International Group, Inc. on Form S-8 of our reported dated March 5,
1999, appearing in and incorporated by reference 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
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Deloitte and Touche LLP
San Francisco, California
August 24, 1999
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EXHIBIT 99.1
CIRCLE INTERNATIONAL GROUP, INC.
1999 STOCK OPTION PLAN
SECTION 1
ESTABLISHMENT, PURPOSE AND DURATION
1.1 Establishment of the Plan. Circle International Group, Inc., a
Delaware corporation (the "Company"), hereby establishes a stock option plan to
be known as the "Circle International Group, Inc. 1999 Stock Option Plan" (the
"Plan"). The Plan permits the grant of Nonqualified Stock Options. The Plan is
effective as of August 23, 1999.
1.2 Purpose of the Plan. The purpose of the Plan is to promote the
success, and enhance the value, of the Company by linking the personal interests
of Participants to those of Company shareholders, and by providing Participants
with an incentive for outstanding performance.
The Plan is further intended to provide flexibility to the Company in its
ability to motivate, attract, and retain the services of Participants upon whose
judgment, interest, and special effort the successful conduct of its operation
largely is dependent.
1.3 Duration of the Plan. The Plan shall commence on the date specified in
Section 1.1, and shall remain in effect, subject to the right of the Board of
Directors to terminate the Plan at any time pursuant to Section 13 until all
Shares subject to the Plan have been purchased or acquired pursuant to the
provisions of the Plan.
SECTION 2
DEFINITIONS
The following terms shall have the meanings set forth below, unless plainly
required by the context:
2.1 "Award Agreement" means an agreement entered into by each Participant
and the Company, setting forth the terms and provisions applicable to Options
granted to Participants under this Plan.
2.2 "Board" or "Board of Directors" 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 shall include such section, any valid
regulation promulgated thereunder, and any comparable provision of any future
legislation amending, supplementing or superseding such section.
2.4 "Committee" means the committee, as specified in Section 3, appointed
by the Board to administer the Plan with respect to grants of Options.
<PAGE>
2.5 "Company" means Circle International Group, Inc., a Delaware
corporation, or any successor thereto.
2.6 "Consultant" means any consultant, independent contractor, or other
person who provides bona fide services to the Company or its Subsidiaries, but
who is neither an employee of the Company or its Subsidiaries, nor a Director of
the Company.
2.7 "Director" means any individual who is a member of the Board of
Directors of the Company.
2.8 "Disability" means a permanent and total disability within the meaning
of Code Section 22 (e) (3).
2.9 "Employee" means any employee of the Company or of the Company's
subsidiaries, 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 "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor Act thereto. Reference to a specific section
or regulation of the Exchange Act shall include such section or regulation, any
valid regulation promulgated thereunder, and any comparable provision of any
future legislation amending, supplementing or superseding such section or
regulation.
2.11 "Fair Market Value" means the last quoted selling price for Shares on
the relevant date, or if there were no sales on such date, the last quoted
selling price on the nearest day before the relevant date, as determined by the
Committee.
2.12 "Incentive Stock Option" or "ISO" means an option to purchase Shares,
which is designated as an Incentive Stock Option and is intended to meet the
requirements of Section 422 of the Code.
2.13 "Insider" shall mean an Employee who, on the relevant date, is a
Company director, Company officer (within the meaning of Rule 16a-l promulgated
under the Exchange Act), or beneficial owner of 10% or more of the Shares.
Insider shall also include any individual who, on the relevant date, is a
"covered employee" within the meaning of Section 162(m)(3) of the Code.
2.14 "Nonqualified Stock Option" or "NQSO" means an option to purchase
Shares which is not intended to be an Incentive Stock Option.
2.15 "Option" means a Nonqualified Stock Option.
2.16 "Option Price" means the price at which a Share may be purchased by a
Participant pursuant to an Option, as determined by the Committee.
2.17 "Participant" means an Employee of the Company who has an outstanding
Option granted under the Plan.
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2.18 "Retirement" shall have the meaning for each respective individual
Participant ascribed to it in the pension plan of the Company applicable to each
such respective Participant.
2.19 "Shares" means the shares of common stock of the Company.
2.20 "Subsidiary" means any corporation in which the Company owns directly,
or indirectly through subsidiaries, at least fifty percent (50%) of the total
combined voting power of all classes of stock, or any other entity (including,
but not limited to, partnerships and joint ventures) in which the Company owns
at least fifty percent (50%) of the combined equity thereof.
2.21 "Window Period" means the period beginning on the third business day
following the date of public release of the Company's quarterly sales and
earnings information, and ending on the thirtieth business day following such
date.
SECTION 3
ADMINISTRATION
3.1 The Committee. The Plan shall be administered by the Committee. The
Committee shall consist of not less than two (2) Directors. The members of the
Committee shall be appointed from time to time by, and shall serve at the
pleasure of, the Board of Directors. The Committee shall be comprised solely of
Directors who are "disinterested persons" under Rule 16b-3 under the Exchange
Act.
3.2 Authority of the Committee. The Committee shall have full power,
except as limited by law or by the Certificate of Incorporation or Bylaws of the
Company, and subject to the provisions herein, to determine the size of Options;
to determine the terms and conditions of such Options in a manner consistent
with the Plan; to construe and interpret the Plan and any Award Agreement or
instrument entered into under the Plan; to establish, amend, or waive rules and
regulations for the Plants administration; and (subject to the provisions of
Section 13 herein) to amend the terms and conditions of any outstanding Option
to the extent such terms and conditions are within the discretion of the
Committee as provided in the Plan. Further, the Committee shall make all other
determinations which may be necessary or advisable for the administration of the
Plan. As permitted by law, the Committee may delegate its powers.
3.3 Decisions Binding. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan and all related orders or
resolutions of the Board of Directors shall be final, conclusive, and binding on
all persons, including the Company, its shareholders, Employees, Participants,
and their estates and beneficiaries, and shall be given the maximum deference
permitted by law.
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SECTION 4
SHARES SUBJECT TO THE PLAN
4.1 Number of Shares. Subject to adjustment as provided in Section 4.3,
the total number of Shares available for grant under the Plan may not exceed
125,000. These 125,000 Shares may be either authorized but unissued or
reacquired Shares.
The following rules will apply for purposes of the determination of the
number of Shares available for grant under the Plan:
(a) While an Option is outstanding, it shall be counted against the
authorized pool of Shares, regardless of its vested status.
(b) The grant of an Option shall reduce the Shares available for grant
under the Plan by the number of Shares subject to such Option.
(c) To the extent that an Option is settled in cash rather than in Shares,
the authorized Share pool shall be credited with the appropriate
number of Shares having a Fair Market Value equal to the cash
settlement of the Option.
4.2 Lapsed Options. If any Option granted under this Plan is cancelled,
terminates, expires, or lapses for any reason, any Shares subject to such Option
again shall be available for the grant of an Option under the Plan.
4.3 Adjustments in Authorized Shares. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, stock
dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, such adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in the
number and class of and/or price of Shares subject to outstanding Options
granted under the Plan, as may be determined to be appropriate and equitable by
the Committee, in its sole discretion, to prevent dilution or diminishment of
Options; and provided that the number of Shares subject to any Option shall
always be a whole number.
SECTION 5
ELIGIBILITY AND PARTICIPATION
5.1 Eligibility. Persons eligible to participate in this Plan include all
Employees and Consultants of the Company and its Subsidiaries, as determined by
the Committee, but excluding Directors and other Insiders.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee in its sole discretion, shall select from all eligible Employees and
Consultants, those to whom Options shall be granted, and the Committee, in its
sole discretion, shall determine the nature and amount of each Option.
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SECTION 6
STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to eligible Employees and Consultants at any time and
from time to time as shall be determined by the Committee. The Committee shall
have discretion in determining the number of Shares subject to Options granted
to each Participant. The Committee may only grant NQSOs.
6.2 Award Agreement. Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the duration of the Option, the
number of Shares to which the Option pertains, the conditions of exercise of the
Options, and such other provisions as the Committee shall determine. The Award
Agreement also shall specify that the Option is intended to be a NQSO.
6.3 Option Price. The Option Price for each grant of an Option shall be
determined by the Committee in its sole discretion. The Option Price shall be
not less than fifty percent (50%) of the Fair Market Value of such Shares.
6.4 Duration of Options. Each Option shall expire at such time as the
Committee, in its sole discretion, shall determine. After the Option is granted,
the Committee, in its sole discretion, may extend the maximum term of such
Option.
6.5 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee, in its sole discretion, shall determine. After an Option is
granted, the Committee, in its sole discretion, may accelerate the
exercisability of the Option.
6.6 Payment. Options shall be exercised by the Participant's delivery of a
written notice of exercise to the Secretary of the Company or his designee
setting forth the number of Shares with respect to which the Option is to be
exercised, accompanied by full payment for the Shares.
The Option Price upon exercise of any Option shall be payable to the
Company in full in cash or its equivalent. The Committee, in its sole
discretion, also may permit exercise (a) by tendering previously acquired Shares
having an aggregate Fair Market Value at the time of exercise equal to the total
Option Price (provided that the Shares which are tendered must have been held by
the Participant for at least six (6) months prior to their tender to satisfy the
Option Price), or (b) by any other means which the Committee, in its sole
discretion, determines to provide legal consideration for the Shares, and to be
consistent with the Plan's purpose and applicable law.
As soon as practicable after receipt of a written notification of exercise
and full payment, the Company shall deliver to the Participant, in the
Participant's name, Share certificates in an appropriate amount based upon the
number of Shares purchased under the Option(s).
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6.7 Restrictions on Share Transferability. The Committee may impose such
restrictions on any Shares acquired pursuant to the exercise of an Option under
the Plan, as it may deem advisable, including, without limitation, restrictions
under applicable Federal securities laws, under the requirements of any national
securities exchange or system upon which such Shares are then listed and/or
traded, and under any blue sky or state securities laws applicable to such
Shares.
SECTION 7
BENEFICIARY DESIGNATION
As provided in this Section 7, each Participant under the Plan may name a
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of the Participant's death
before he or she receives any or all of such benefit and/or who may exercise any
vested Option under the Plan following the Participant's death. Each such
designation shall revoke all prior designations by the same Participant and must
be in a form and manner acceptable to the Committee. In the absence of any such
designation, benefits remaining unpaid at the Participant's death shall be paid
to the Participant's estate and, subject to the terms of the Plan, any
unexercised vested Option may be exercised by the administrator or executor of
the Participant's estate.
SECTION 8
DEFERRALS
The Committee, in its sole discretion, may permit a Participant to defer
such Participant's receipt of the payment of cash or the delivery of Shares that
would otherwise be due to such Participant by virtue of the exercise of an
Option. Any such deferral elections shall be subject to such rules and
procedures as shall be determined by the Committee from time to time.
SECTION 9
RIGHTS OF EMPLOYEES
9.1 No Effect on Employment or Service. Nothing in the Plan shall
interfere with or limit in any way the right of the Company to terminate any
Participant's employment or service at any time, with or without cause. For
purposes of the Plan, transfer of employment of a Participant between the
Company and any one of its Subsidiaries (or between Subsidiaries) shall not be
deemed a termination of employment.
9.2 Participation. No Employee or Consultant shall have the right to be
selected to receive an Option under this Plan, or, having been so selected, to
be selected to receive a future Option.
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SECTION 10
AMENDMENT, SUSPENSION, OR TERMINATION
10.1 Amendment, Suspension, or Termination. The Board, in its sole
discretion, may alter, amend or terminate the Plan, or any part thereof, at any
time and for any reason; provided, however, that without further stockholder
approval, no such alteration or amendment shall (a) materially increase the
benefits accruing to participants under the Plan, (b) materially increase the
number of securities which may be issued under the Plan, or (c) materially
modify the requirements as to eligibility for participation in the Plan;
provided, further, that stockholder approval is not required if such approval is
not required in order to assure the Plan's continued qualification under Rule
16b-3 promulgated under the 1934 Act. Neither the amendment, suspension, nor
termination of the Plan shall, without the consent of the Participant, alter or
impair any rights or obligations under any Option theretofore granted. No Option
may be granted during any period of suspension nor after termination of the
Plan.
SECTION 11
WITHHOLDING
11.1 Tax Withholding. Prior to the delivery of any Shares or cash pursuant
to the Plan, the Company shall have the power and the right to deduct or
withhold, or require a Participant to remit to the Company, an amount sufficient
to satisfy Federal, state, and local taxes (including the Participant's FICA
obligation) required by law to be withheld with respect to any Options.
11.2 Shares Withholding. The Committee may, in its absolute discretion,
permit a Participant to satisfy such tax withholding obligation, in whole or in
part, by electing to have the Company withhold Shares having a value equal to
the amount required to be withheld or by delivering to the Company already-owned
shares to satisfy the withholding requirement. The amount of the withholding
requirement shall be deemed to include any amount which the Committee agrees may
be withheld at the time the election is made, not to exceed the amount
determined by using the maximum federal, state or local marginal income tax
rates applicable to the Participant with respect to the Option on the date that
the amount of tax to be withheld is to be determined (the "Tax Date"). The value
of the Shares to be withheld or delivered will be based on their Fair Market
Value on the Tax Date. Such elections will be subject to the following
restrictions: (l) the election must be made on or before the Tax Date; (2) the
election will be irrevocable; and (3) the election will be subject to the
disapproval of the Committee. Each election by an Optionee or Grantee whose
transactions in shares of Common Stock are subject to Section 16(b) of the
Exchange Act will be subject to the following additional restrictions: (1) the
election may not be made within six months of the grant of the Option (except
that this limitation will not apply in the event the death or disability of the
Participant occurs prior to the expiration of the six-month period), and (2) the
election must be made either at least six months before the Tax Date or within a
Window Period.
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SECTION 12
INDEMNIFICATION
Each person who is or shall have been a member of the Committee, or of the
Board, shall be indemnified and held harmless by the Company against and from
any loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by him or her in connection with or resulting from any claim, motion,
suit, or proceeding to which he or she may be a party or in which he or she may
be involved by reason of any action taken or failure to act under the Plan or
any Award Agreement and against and from any and all amounts paid by him or her
in settlement thereof, with the Company's approval, or paid by him or her in
settlement thereof, with the Companies approval, or paid by him or her in
satisfaction of any judgment in any such action, suit, or proceeding against him
or her, provided he or she shall give the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of indemnification shall
not be exclusive of any other rights of indemnification to which such persons
may be entitled under the Company's Articles of Incorporation or Bylaws, as a
matter of law, or otherwise, or any power that the Company may have to indemnify
them or hold them harmless.
SECTION 13
SUCCESSORS
All obligations of the Company under the Plan, with respect to Options
granted hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
SECTION 14
LEGAL CONSTRUCTION
14.1 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
14.2 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.
14.3 Requirements of Law. The granting of Options and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
8
<PAGE>
Notwithstanding any other provision set forth in the Plan, if required by
the then-current Section 16 of the Exchange Act, any "derivative security" or
"equity security" offered pursuant to the Plan to any Insider may not be sold or
transferred for at least six (6) months after the date of grant of such Option.
The terms "equity security" and "derivative security" shall have the meanings
ascribed to them in the then-current rules promulgated under Section 16 of the
Exchange Act.
14.4 Governing Law. The Plan and all Award Agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of
California. Any action related to the Plan shall be submitted to final and
binding arbitration pursuant to the terms of the California Civil Code.
14.5 Captions. Captions are provided herein for convenience only, and are
not to serve as a basis for interpretation or construction of the Plan.
EXECUTION
IN WITNESS WHEREOF, Circle International Group, Inc., by its duly
authorized officer, has executed the Plan on the date indicated below.
Circle International Group, Inc.
By:
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Name:
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Title:
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Dated:
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