-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SMIJEoz1yZiEbd1D8iZqcocL7Xz5VRSmU1IZSMkVXf3G74MteLHzK7uyYWn2hQ0s XUQFOxJz9qO1KNwbFlj9ow== /in/edgar/work/0000950129-00-004822/0000950129-00-004822.txt : 20001003 0000950129-00-004822.hdr.sgml : 20001003 ACCESSION NUMBER: 0000950129-00-004822 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20001002 EFFECTIVENESS DATE: 20001002 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EGL INC CENTRAL INDEX KEY: 0001001718 STANDARD INDUSTRIAL CLASSIFICATION: [4731 ] IRS NUMBER: 760094895 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-42310 FILM NUMBER: 733665 BUSINESS ADDRESS: STREET 1: 15340 VICKERY DR CITY: HOUSTON STATE: TX ZIP: 77032 BUSINESS PHONE: 2816183100 MAIL ADDRESS: STREET 1: 15350 VICKERY DR STREET 2: SUITE 510 CITY: HOUSTON STATE: TX ZIP: 77032 FORMER COMPANY: FORMER CONFORMED NAME: EAGLE USA AIRFREIGHT INC DATE OF NAME CHANGE: 19951002 S-8 POS 1 h80652a1s-8pos.txt EGL, INC. - POST-EFFECTIVE AMENDMENT NO.1 TO S-4 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2, 2000 REGISTRATION NO. 333-42310 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- EGL, INC. (Exact Name of Registrant as Specified in Its Charter) TEXAS 76-0094895 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.)
15350 VICKERY DRIVE HOUSTON, TEXAS 77032 (Address of Principal Executive Offices and Zip Code) ---------- CIRCLE INTERNATIONAL GROUP, INC. 1994 OMNIBUS EQUITY INCENTIVE PLAN CIRCLE INTERNATIONAL GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN CIRCLE INTERNATIONAL GROUP, INC. 1999 STOCK OPTION PLAN CIRCLE INTERNATIONAL GROUP, INC. 2000 STOCK OPTION PLAN U.K. SHARESAVE SCHEME (Full Title of the Plans) ---------- JAMES R. CRANE PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD EGL, INC. 15350 VICKERY DRIVE HOUSTON, TEXAS 77032 (281) 618-3100 (Name, Address and Telephone Number, Including Area Code, of Agent for Service) ---------- This Post-Effective Amendment on Form S-8 to Form S-4 Registration Statement (333-42310) is being filed pursuant to the provisions of Rule 401(e) under the Securities Act of 1933, as amended, and the procedures described herein and covers 1,147,952 shares of the Registrant's Common Stock, par value $.001 per share, (827,777 shares under the Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan, 25,000 shares under the Circle International Group, Inc. Employee Stock Purchase Plan, 116,450 shares under the Circle International Group, Inc. 1999 Stock Option Plan, 158,725 shares under the Circle International Group, Inc. 2000 Stock Option Plan and 20,000 shares under the Circle International Group, Inc. U.K. Sharesave Scheme). The registration fee in respect of such shares of Common Stock was paid at the time of the original filing of the Registration Statement on Form S-4 relating to such Common Stock. ================================================================================ 2 INTRODUCTORY STATEMENT EGL, Inc. (the "Registrant" or the "Company") is filing this Post-Effective Amendment No. 1 on Form S-8 to Registration Statement on Form S-4 relating to its Common Stock, par value $.001 per share (the "Common Stock"), which may be offered and sold pursuant the Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan, the Circle International Group, Inc. Employee Stock Purchase Plan, the Circle International Group, Inc. 1999 Stock Option Plan, the Circle International Group, Inc. 2000 Stock Option Plan and the Circle International Group, Inc. U.K. Sharesave Scheme (collectively, the "Plans"). On October 2, 2000, pursuant to an Agreement and Plan of Merger dated as of July 2, 2000 by and among the Registrant, EGL Delaware I, Inc., a Delaware corporation and direct, wholly owned subsidiary of the Registrant ("Merger Sub"), and Circle International Group, Inc., a Delaware corporation ("Circle"), among other things (a) Merger Sub was merged into Circle, as a result of which Circle became a wholly owned subsidiary of the Registrant, (b) each outstanding share of Common Stock, par value $1.00 per share, of Circle ("Circle Common Stock") was converted into the right to receive one share of Common Stock and (c) the Registrant assumed Circle's obligations under the Plans, and Common Stock became purchasable or otherwise issuable thereunder in lieu of Circle Common Stock. This Post-Effective Amendment No. 1 on Form S-8 relates only to the Common Stock issuable pursuant to the terms of the Plans. There are also registered hereunder such additional indeterminate shares of the Registrant's Common Stock as may be required as a result of stock splits, stock dividends, or similar transactions. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Note: The document(s) containing the employee benefit plan information required by Item 1 of Form S-8 and the statement of availability of registrant information and any other information required by Item 2 of Form S-8 will be sent or given to participants as specified by Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. The registrant shall maintain a file of such documents in accordance with the provisions of Rule 428. Upon request, the registrant shall furnish to the Commission or its staff a copy or copies of all of the documents included in such file. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. This registration statement incorporates herein by reference the following documents which have been filed with the Commission by Circle (SEC File No. 0-08664) pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"): 1. Circle's Annual Report on Form 10-K for the fiscal year ended December 31, 1999; 2. Circle's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000 and June 30, 2000; and 3. Circle's Current Reports on Form 8-K filed on May 16, 2000, July 3, 2000 and July 6, 2000. This registration statement incorporates herein by reference the following documents which have been filed with the Commission by the Company (SEC File No. 0-27288) pursuant to the Securities Act and the Exchange Act: 1. The description of the Common Stock contained in the Company's Registration Statement on Form 8-A as originally filed with the Commission on November 27, 1995, and as thereafter amended on June 28, 1998 and September 29, 2000, and as such Registration Statement may be amended from time to time for the purpose of updating, changing or modifying such description; 2. The Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1999; 3. The Company's Quarterly Reports on Form 10-Q for the quarters ended December 31, 1999, March 31, 2000 and June 30, 2000; 4. The Company's Quarterly Report on Form 10-Q for the transition period beginning on October 1, 1999 and ending on December 31, 1999; 5. The Company's Current Reports on Form 8-K filed on January 20, 2000, July 5, 2000 and July 17, 2000; and 6. The information under the caption "Unaudited Pro Forma Condensed Combined Financial Statements" and "Notes to Unaudited Pro Forma Condensed Combined Financial Statements" appearing on pages 66 through 72 and pages 73 to 74, respectively, of the Joint Proxy Statement/Prospectus of the Company and Circle dated August 10, 2000, which is included as part of the Registration Statement on Form S-4 (333-42310) of the Company. Each document filed with the Commission by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby 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 such documents. Any statement contained in this Registration Statement, in an amendment hereto or in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed amendment to this Registration Statement or in any document that also is incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. 4 EXPERTS The consolidated financial statements incorporated in this Post-Effective Amendment No. 1 on Form S-8 to Registration Statement No. 333-42310 on Form S-4 by reference to the Annual Report on Form 10-K of EGL, Inc. for the year ended September 30, 1999 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The consolidated financial statements included in Circle's Annual Report on Form 10-K for the fiscal year ended December 31, 1999 have been so incorporated in reliance on the report of Deloitte & Touche LLP, independent auditors, given on the authority of said firm as experts in accounting and auditing. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article 2.02-1 of the Texas Business Corporation Act provides that a corporation may indemnify any director or officer who was, is or is threatened to be made a named defendant or respondent in a proceeding because he is or was a director or officer, provided that the director or officer (i) conducted himself in good faith, (ii) reasonably believed (a) in the case of conduct in his official capacity, that his conduct was in the corporation's best interests or (b) in all other cases, that his conduct was at least not opposed to the corporation's best interests and (iii) in the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Subject to certain exceptions, a director or officer may not be indemnified if the person is found liable to the corporation or if the person is found liable on the basis that he improperly received a personal benefit. Under Texas law, reasonable expenses incurred by a director or officer may be paid or reimbursed by the corporation in advance of a final disposition of the proceeding after the corporation receives a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification and a written undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that the director or officer is not entitled to indemnification by the corporation. Texas law requires a corporation to indemnify an officer or director against reasonable expenses incurred in connection with the proceeding in which he is named defendant or respondent because he is or was a director or officer if he is wholly successful in defense of the proceeding. Texas law also permits a corporation to purchase and maintain insurance or another arrangement on behalf of any person who is or was a director or officer against any liability asserted against him and incurred by him in such a capacity or arising out of his status as such a person, whether or not the corporation would have the power to indemnify him against that liability under Article 2.02-1. The Company's Bylaws provide for the indemnification of its officers and directors, and the advancement to them of expenses in connection with proceedings and claims, to the fullest extent permitted by the Texas Business Corporation Act. The Company has also entered into indemnification agreements with each of its directors and certain of its officers that contractually provide for indemnification and expense advancement and include related provisions meant to facilitate the indemnitees' receipt of such benefits. These provisions cover, among other things: (i) specification of the method of determining entitlement to indemnification and the selection of independent counsel that will in some cases make such determination, (ii) specification of certain time periods by which certain payments or determinations must be made and actions must be taken and (iii) the establishment of certain presumptions in favor of an indemnitee. The benefits of certain of these provisions are available to an indemnitee only if there has been a change in control (as defined). In addition, the Company may purchase directors' and officers' liability insurance policies for its directors and officers in the future. The Bylaws and such agreements with directors and officers provide for indemnification for amounts (1) in respect of the deductibles for such insurance policies, (2) that exceed the liability limits of such insurance policies and (3) that are available, were available or which become available to the Company but which the officers or directors of the Company determine are inadvisable for the Company to purchase, given the 5 cost involved of the Company. Such indemnification may be made even though directors and officers would not otherwise be entitled to indemnification under other provisions of the Bylaws or such agreements. The above discussion of Article 2.02-1 of the Texas Business Corporation Act, the Company's Bylaws and the indemnification agreements is not intended to be exhaustive and is respectively qualified in its entirety by such statute, the Bylaws and the indemnification agreements. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. The following documents are filed as a part of this Registration Statement or incorporated by reference herein: Exhibit No. Description - -------- ----------- 4.1* -- Second Amended and Restated Articles of Incorporation of the Company, as amended (Filed as Exhibit 3(i) to the Form 8-A/A of the Company filed on September 29, 2000). 4.2* -- Amended and Restated Bylaws of the Company, as amended (Filed as Exhibit 3(ii) to the Quarterly Report on Form 10-Q of the Company for the fiscal quarter ended June 30, 2000). 4.3* -- Agreement and Plan of Merger dated as of July 2, 2000 among the Company, Circle and EGL Delaware I, Inc. (Filed as Exhibit 2.1 to the Current Report on Form 8-K of the Company dated July 2, 2000). 4.4* -- Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan (Filed as Exhibit 10.11 to Annual Report on Form 10-K of Circle (SEC File No. 0-8664) for the fiscal year ended December 31, 1993). 4.5* -- Amendment No. 1 to Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan (Filed as Exhibit 10.11.1 to Annual Report on Form 10-K of Circle (SEC File No. 0-8664) for the fiscal year ended December 31, 1995). 4.6* -- Circle International Group, Inc. Employee Stock Purchase Plan (Filed as Exhibit 99.1 to the Registration Statement on Form S-8 of Circle (SEC Registration No. 333-78747) filed on May 19, 1999). 4.7* -- Circle International Group, Inc. 1999 Stock Option Plan (Filed as Exhibit 99.1 to the Form S-8 Registration Statement of Circle (SEC Registration No. 333-85807) filed on August 24, 1999). 4.8 -- Form of Nonqualified Stock Option Agreement for Circle International Group, Inc. 2000 Stock Option Plan. 4.9 -- Circle International Group, Inc. U.K. Sharesave Scheme. 5.1 -- Opinion of Baker Botts L.L.P. 23.1 -- Consent of PricewaterhouseCoopers LLP. 23.2 -- Consent of Deloitte & Touche LLP. 6 23.3 -- Consent of Baker Botts L.L.P. (included in Exhibit 5.1). 24.1+ -- Powers of Attorney. - ---------- * Incorporated herein by reference as indicated. + Previously filed as part of the Registrant's Registration Statement on Form S-4 filed with the Commission on July 27, 2000. ITEM 9. UNDERTAKINGS. (a) The Company 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 this 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 total 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) of the Securities Act of 1933 if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth 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 this registration statement or any material change to such information in this registration statement; provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (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 an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this 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 provisions described under Item 6 above, 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 of 1933 and is, therefore, unenforceable. In the event that a claim for 7 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 of 1933 and will be governed by the final adjudication of such issue. 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 2, 2000. EGL, INC. By /s/ Elijio V. Serrano ----------------------- Elijio V. Serrano Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated and on October 2, 2000. * President, Chief Executive Officer --------------------------------------- and Chairman of the Board James R. Crane (Principal Executive Officer) /s/ Elijio V. Serrano Chief Financial Officer and Director --------------------------------------- (Principal Financial and Accounting Elijio V. Serrano Officer) * Director --------------------------------------- Frank J. Hevrdejs * Director --------------------------------------- Norwood Knight-Richardson * Director --------------------------------------- Neil E. Kelley * Director --------------------------------------- Rebecca A. McDonald * Director --------------------------------------- William P. O'Connell * By: /s/ Elijio V. Serrano ------------------------------------ Elijio V. Serrano Attorney-in-fact 9 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 4.1* -- Second Amended and Restated Articles of Incorporation of the Company, as amended (Filed as Exhibit 3(i) to the Form 8-A/A of the Company filed on September 29, 2000). 4.2* -- Amended and Restated Bylaws of the Company, as amended (Filed as Exhibit 3(ii) to the Quarterly Report on Form 10-Q of the Company for the fiscal quarter ended June 30, 2000). 4.3* -- Agreement and Plan of Merger dated as of July 2, 2000 among the Company, Circle and EGL Delaware I, Inc. (Filed as Exhibit 2.1 to the Current Report on Form 8-K of the Company dated July 2, 2000). 4.4* -- Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan (Filed as Exhibit 10.11 to Annual Report on Form 10-K of Circle (SEC File No. 0-8664) for the fiscal year ended December 31, 1993). 4.5* -- Amendment No. 1 to Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan (Filed as Exhibit 10.11.1 to Annual Report on Form 10-K of Circle (SEC File No. 0-8664) for the fiscal year ended December 31, 1995). 4.6* -- Circle International Group, Inc. Employee Stock Purchase Plan (Filed as Exhibit 99.1 to the Registration Statement on Form S-8 of Circle (SEC Registration No. 333-78747) filed on May 19, 1999). 4.7* -- Circle International Group, Inc. 1999 Stock Option Plan (Filed as Exhibit 99.1 to the Form S-8 Registration Statement of Circle (SEC Registration No. 333-85807) filed on August 24, 1999). 4.8 -- Form of Nonqualified Stock Option Agreement for Circle International Group, Inc. 2000 Stock Option Plan. 4.9 -- Circle International Group, Inc. U.K. Sharesave Scheme. 5.1 -- Opinion of Baker Botts L.L.P. 23.1 -- Consent of PricewaterhouseCoopers LLP. 23.2 -- Consent of Deloitte & Touche LLP. 23.3 -- Consent of Baker Botts L.L.P. (included in Exhibit 5.1). 24.1+ -- Powers of Attorney.
- ---------- * Incorporated herein by reference as indicated. + Previously filed as part of the Registrant's Registration Statement on Form S-4 filed with the Securities and Exchange Commission on July 27, 2000. EX-4.8 2 h80652a1ex4-8.txt FORM OF NONQUALIFIED STOCK OPTION AGREEMENT 1 EXHIBIT 4.8 FORM OF NONQUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT made and entered into this ______ day of _____________, 2000, by and between Circle International Group, Inc., a Delaware corporation (the "Company"), and _______________________________, an employee of the Company (the "Employee"), WITNESSETH: WHEREAS, the Company has adopted the 2000 Stock Option 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 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 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. The parties agree that this option will not be treated as an "incentive stock option". 2. Exercise Price. The purchase price per share is ____________________ Point _________ Dollars ($_______.___) (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. 2 Subject to any required approval 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; (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; (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; or (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. 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. 3 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 ________________, 2002, 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 ________________, 2003, 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 12 months beginning ________________, 2004, 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. Termination Of Option. In the event of termination of the Employee's employment for any reason other than 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 the Employee's 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 the Employee 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 the Employee and shall be nontransferable by the Employee otherwise than by will or the 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 4 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 the Employee's 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. 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 the Employee 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 the Employee 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 address set forth beneath the Employee's 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. 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 5 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 ten years 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, 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. 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. 6 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. 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 interpretations 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 - -------------------------------- Address - -------------------------------- EX-4.9 3 h80652a1ex4-9.txt CIRCLE INTERNATIONAL GROUP U.K. SHARESAVE SCHEME 1 EXHIBIT 4.9 PRIVATE AND CONFIDENTIAL ---------- RULES OF THE CIRCLE INTERNATIONAL GROUP INC SHARESAVE SCHEME 2000 ---------- IR REF: SR52432/IDA Deloitte & Touche Hill House 1 Little New Street London EC4A 3TR 2
CONTENTS RULE PAGE 1 Definitions 1 2 Application for options 5 3 Scaling down 6 4 Grant of options 7 5 Number of shares in respect of which options may be granted 8 6 Rights of exercise and lapse of options 9 7 Takeover, reconstructions and amalgamation and liquidation 11 8 Manner of exercise 13 9 Issue of transfer of shares 13 10 Adjustments 14 11 Administration 14 12 Alterations 15 13 General 16
3 RULES OF THE CIRCLE INTERNATIONAL GROUP INC SHARESAVE SCHEME 2000 1. DEFINITIONS 1.1 In this Scheme, the following words and expressions shall bear, unless the context otherwise requires, the meanings set out below: "APPROPRIATE PERIOD" the meaning given by paragraph 15(2) of Schedule 9 to the Taxes Act; "ASSOCIATED COMPANY" within the meaning of section 187(2) of the Taxes Act; "THE BOARD" the board of directors of the Company, or a duly authorised committee appointed by the board to administer the Plan; "BONUS DATE" the date on which the bonus becomes payable under the Sharesave Contract made in connection with an Option being, in the case of a 3 year contract, the date of completion of 36 monthly contributions, in the case of a 5 year contract, the date of completion of 60 monthly contributions and, in the case of a 7 year contract, the second anniversary of the date of completion of 60 monthly contributions; "BUSINESS DAY" any day on which the London (or New York as appropriate) Stock Exchange is open for the transaction of business; "CLOSE COMPANY" a close company as defined in section 414(1) of the Taxes Act as varied by Paragraph 8 of Schedule 9 to the Taxes Act; "THE COMPANY" Circle International Group Inc a corporation registered in Delaware, USA; "CONTROL" within the meaning of section 840 of the Taxes Act; "DATE OF GRANT" the date on which the Option Committee resolves to grant an Option; "DATE OF INVITATION" the date on which the Option Committee invites applications for Options; 1 4 "ELIGIBLE EMPLOYEE" any individual who: (a) (i) is a full time director who works at least 25 hours a week (excluding meal breaks) or is an employee of one or more Participating Companies; and (ii) has such qualifying period (if any) of continuous service (being a period commencing not earlier than two years prior to the Date of Grant) as the Option Committee may determine; and (iii) is subject to income tax under Case 1 of Schedule E as defined in the Taxes Act; or (b) is a full time director who works at least 25 hours a week (excluding meal breaks) or an employee and is nominated by the Option Committee either individually or as a member of a category of such full time directors or employees; "EMPLOYEES' SHARE the meaning given by s743 of the Companies Act 1985; SCHEMES" "EXERCISE PRICE" the amount payable in relation to the exercise of an Option, whether in whole or in part, being an amount equal to the relevant Option Price multiplied by the number of Shares in respect of which the Option is exercised; "MARKET VALUE" in relation to a Share on any day: i) where shares of the same class are not admitted to the Official List of the London or New York Stock Exchange, its market value as determined in accordance with Part VIII of the Taxation of Chargeable Gains Act 1992 and agreed in advance with the Shares Valuation Division of the Inland Revenue. For the avoidance of doubt, the market value of shares of the same class listed on the NASDAQ Stock Market shall be calculated in this way; and 2 5 (ii) where shares of the same class are so listed, its middle market quotation (as derived from the Daily Official List of the London or New York Stock Exchange) for the immediately preceding Business Day or, if the Board so determines, the average of the middle market quotations over the 3 immediately preceding Business Days or such other price as agreed in advance with the Shares Valuation Division of the Inland Revenue. "MATERIAL INTEREST" the meaning given by section 187(3) of the Taxes Act; "MAXIMUM CONTRIBUTION" the lesser of: (a) such maximum monthly contribution as may be permitted pursuant to paragraph 24 of Schedule 9 to the Taxes Act; or (b) such maximum monthly contribution as may be determined from time to time by the Option Committee; "MEMBER OF A CONSORTIUM" the meaning given by section 187(7) of the Taxes Act; "MONTHLY CONTRIBUTIONS" monthly contributions agreed to be paid by a Participant under the Sharesave Contract made in connection with his Option; "OPTION" a right to acquire Shares under the Scheme which is either subsisting or (where the context so admits or requires) is proposed to be granted; "OPTION COMMITTEE" a Committee duly appointed by the Board which where comprising directors shall only include directors who do not hold any executive office with the Company or any of its subsidiaries or who will not themselves participate in the Scheme; "OPTION PRICE" the price per Share, as determined by the Board, at which an Eligible Employee may acquire Shares upon the exercise of an Option being not less than: (a) 85 per cent of the Market Value of the Shares; and 3 6 (b) if the Shares are to be subscribed, their nominal value, but subject to any adjustment pursuant to Rule 10; "PARTICIPANT" an executive director or employee, or former director or employee, to whom an Option has been granted or (where the context so admits or requires) the personal representatives of any such person; "PARTICIPATING COMPANY" (a) the Company; and (b) any other company which is under the Control of the Company, is a Subsidiary of the Company and is for the time being designated by the Board as a Participating Company; "REPAYMENT" in relation to a Sharesave Contract, the aggregate of the Monthly Contributions which the Participant has made and any bonus due at the Bonus Date; "SHARESAVE CONTRACT" a contract under a certified contractual savings scheme (within the meaning of section 326 of the Taxes Act) approved by the Inland Revenue for the purpose of Schedule 9 to the Taxes Act; "THE SCHEME" the Circle International Group Inc Sharesave Scheme in its present form or as from time to time amended in accordance with its provisions; "SHARE" a fully paid ordinary share in the capital of the Company which satisfies the conditions specified in paragraphs 10 to 14 (inclusive) of Schedule 9 to the Taxes Act; "SPECIFIED AGE" 60 years of age; "SUBSIDIARY" the meaning given by sections 736 and 736A of the Companies Act 1985; "TAXES ACT" the Income and Corporation Taxes Act 1988. 1.2 In the Scheme where the context so admits or requires the singular includes the plural and the masculine includes the feminine and vice versa; references to any statutory provisions shall include any modification or re-enactment. 4 7 1.3 Headings shall be ignored in construing these Rules. 2. APPLICATION FOR OPTIONS 2.1 The Option Committee may invite applications for Options from Eligible Employees. Invitations shall only be made within 42 days commencing on any of the following: 2.1.1 the day on which the Scheme is formally approved by the Inland Revenue; 2.1.2 the day immediately following the day on which the Company makes an announcement of its results for the last preceding financial year, half year or other period; 2.1.3 any day on which the Board resolves that exceptional circumstances exist which justify the making of invitations; 2.1.4 any day on which changes to the legislation or regulations affecting sharesave schemes approved by the Inland Revenue are announced, effected or made; 2.1.5 any day on which a new Sharesave Contract prospectus is announced or takes effect. If the grant of any Option is prevented by statute, order, regulation, or government directive, or by any code adopted by the Company based on the London Stock Exchange's model code for securities transactions by directors of listed companies, then the Option Committee may make invitations within the period of 42 days after the lifting of such restrictions. 2.2 Any invitation to apply for Options shall be in writing and shall include details of: (a) eligibility; (b) the Option Price or the mechanism by which the Option Price will be notified to Eligible Employees (which for the avoidance of doubt, may be different in respect of 3, 5 and/or 7 year Sharesave Contracts); (c) the Maximum Contribution payable; (d) whether the Eligible Employees may elect for a 3, 5 or 7 year Sharesave Contract; (e) the date by which applications made pursuant to Rule 2.3 must be received (being neither earlier than 14 days nor later than 25 days after the Date of Invitation), 5 8 and the Option Committee may determine and include in the invitations details of the maximum number of Shares over which applications for Options are to be invited. 2.3 Applications for Options must incorporate or be accompanied by a proposal for a Sharesave Contract. If application is made for more than 1 Option, each Option must incorporate or be accompanied by a proposal for a Sharesave Contract. 2.4 An application for an Option shall be in writing in such form as the Option Committee may from time to time prescribe save that it shall provide for the applicant to state: (a) the Monthly Contributions (being a multiple of (pound)1 and not less than (pound)5) which he wishes to make under the Sharesave Contract to be made in connection with the Option for which application is made; (b) that his proposed Monthly Contributions (when taken together with any monthly contributions he makes under any other Sharesave Contract) will not exceed the Maximum Contribution; (c) if Eligible Employees may elect for a 3, 5 or 7 years Sharesave Contract, his election in that respect. 2.5 Each application for an Option shall provide that, in the event of excess applications, each application shall be deemed to have been modified or withdrawn in accordance with the steps taken by the Option Committee to scale down applications pursuant to Rule 3. 2.6 Proposals for a Sharesave Contract shall be limited to such building society or bank as the Option Committee may designate. 2.7 Each application shall be deemed to be for an Option over the largest whole number of Shares which can be acquired at the Option Price with the Repayment under the Sharesave Contract entered into in connection with the Option. 2.8 Eligible Employees may apply for more than one Option in response to any invitation. However, where an Eligible Employee applies for more than one Option, he shall be deemed for the purposes of Rule 3 to have applied for a single Option. 3. SCALING DOWN 3.1 If valid applications are received for a total number of Shares in excess of any maximum number of Shares determined by the Option Committee pursuant to Rule 2.2, or any limitation under Rule 5, the Option Committee shall scale down applications by taking, at its absolute discretion, any of the following steps until the number of Shares available equals or exceeds such total number of Shares applied for: 6 9 (a) by treating any elections for the maximum bonus (being that bonus receivable if savings are made under a 7 year contract) as elections for the standard bonus (being that bonus receivable if savings are made under a 5 year contract) and then, so far as necessary, by reducing the proposed Monthly Contributions pro-rata to the excess over such amount as the Board shall determine for this purpose being not less than (pound)5 and then, so far as necessary selecting by lot; or (b) by treating each election for a bonus as an election for no bonus and then, so far as necessary, by reducing the proposed Monthly Contributions pro rata to the excess over such amount as the Board shall determine for this purpose being not less than (pound)5 and then, so far as necessary, selecting by lot; or (c) by reducing the proposed Monthly Contributions pro rata to the excess over such amount as the Board shall determine for this purpose being not less than (pound)5 and then, so far as necessary, selecting by lot. 3.2 If the number of Shares available is insufficient to enable an Option based on Monthly Contributions of (pound)5 a month to be granted to each Eligible Employee making a valid application, the Option Committee may, as an alternative to selecting by lot, determine in its absolute discretion that no Options shall be granted. 3.3 If the Option Committee so determines, the provisions in Rule 3.1(a), (b) and (c) may be modified or applied in any manner as may be agreed in advance with the Inland Revenue. 3.4 If in applying the scaling down provisions contained in this Rule 3, Options cannot be granted within the 30 day period referred to in Rule 4.2 below, the Option Committee may extend that period by twelve days regardless of the expiry of the relevant period set out in Rule 2.1. 4. GRANT OF OPTIONS 4.1 No Option shall be granted to any person if: (a) at the Date of Grant that person shall have ceased to be an Eligible Employee; or (b) that person has, or has had at any time within the twelve month period preceding the Date of Grant, a Material Interest in the issued ordinary share capital of a Close Company which is the Company or a company which has Control of the Company or is a Member of a Consortium which owns the Company. 7 10 4.2 Within 30 days of the day (or the first day) by reference to which the Option Price was calculated if the shares are listed on the Official List of the London Stock Exchange or, if the Shares are not so listed, the date agreement is reached with the Inland Revenue as to the Market Value of a Share, the Option Committee may, subject to Rule 3 above, grant to each Eligible Employee who has submitted a valid application, an Option in respect of the number of Shares for which application has been deemed to be made under Rule 2.7. The grant of such Options should occur within the 42 day period in Rule 2.1. 4.3 The Company shall issue to each Participant an option certificate in such form (not inconsistent with the provisions of the Scheme) as the Option Committee may from time to time prescribe. Each such certificate shall specify the Date of Grant of the Option, the class of Shares over which the Option is granted, the Option Price and the Bonus Date. 4.4 Except as otherwise provided in these Rules, every Option shall be personal to the Participant to whom it is granted and shall not be transferable. 4.5 No amount shall be paid in respect of the grant of an Option. 5. NUMBER OF SHARES IN RESPECT OF WHICH OPTIONS MAY BE GRANTED 5.1 INDIVIDUAL LIMITS No Eligible Employee shall be granted an Option to the extent it would at the proposed Date of Grant cause the aggregate amount of his contributions under all Sharesave Contracts to exceed the lesser of: 5.1.1 a Monthly Contribution of (pound)250; and 5.1.2 the maximum Monthly Contribution specified by the Board. 5.2 SCHEME LIMITS 5.2.1 The number of Shares which may be allocated under the Scheme on any day shall not, when added to the aggregate of the number of Shares which have been allocated in the previous 10 years under the Scheme and any other Employees' Share Scheme adopted by the Company, exceed such number as represents 10 per cent of the ordinary share capital of the Company in issue immediately prior to that day. 5.2.2 In determining the above limits no account shall be taken of any Shares where the right to acquire such Shares was released or lapsed without being exercised or the right to acquire Shares was granted on or before the Company was admitted to the official list of the London Stock Exchange. 8 11 5.2.3 References in this Rule to the "allocation" of Shares mean, in the case of any share option scheme, the placing of unissued shares under option and, in relation to other types of Employees' Share Scheme, the issue and allotment of shares. 6. RIGHTS OF EXERCISE AND LAPSE OF OPTIONS 6.1 (a) Save as provided in Rules 6.2, 6.3, 6.4 and Rule 7, an Option shall not be exercised earlier than the Bonus Date under the Sharesave Contract entered into in connection with the Option. (b) Save as provided in Rule 6.2, an Option shall not be exercised later than six months after the Bonus Date under the Sharesave Contract entered into in connection with the Option. (c) Save as provided in Rules 6.2 and 6.3, an Option may only be exercised by a Participant whilst he is a director or employee of a Participating Company. (d) An Option may not be exercised by a Participant if he has, or has had at any time within the twelve month period preceding the date of exercise, a Material Interest in the issued ordinarily share capital of a Close Company which is the Company or a company which has Control of the Company or is a Member of a Consortium which owns the Company, nor may an Option be exercised by the personal representatives of a deceased Participant if the Participant had such a Material Interest at the date of his death. (e) An Option may be exercised in part only, however, if such partial exercise occurs the unexercised part shall lapse at the date of exercise. 6.2 An Option may be exercised by the personal representatives of a deceased Participant to the extent of the Repayments due under the Sharesave Contract at the date of death: (a) within twelve months following the date of his death if such death occurs before the Bonus Date; (b) within twelve months following the Bonus Date in the event of his death within six months after the Bonus Date. 6.3 An Option may, to the extent of the Repayment due under the Sharesave Contract at the date of cessation, be exercised by a Participant within six months following his ceasing to hold the office or employment by virtue of which he is eligible to participate in the Scheme by reason of: (a) injury, disability, redundancy within the meaning of the Employment Rights Act 1996 or retirement on reaching the Specified Age or any other age at which he is bound to retire in accordance with the terms of his contract of employment; or 9 12 (b) his office or employment being in a company of which the Company ceases to have Control; or (c) the transfer of his contract of employment (which relates to a business or part of a business) to a person who is neither an Associated Company nor a company of which the Company has Control; or (d) retirement at any age at which he is entitled to retire in accordance with the terms of his contract of employment (other than at the Specified Age or any age at which he is bound to retire), early retirement with the agreement of the employer, or pregnancy, but in each case only if such cessation of office or employment is more than three years after the Date of Grant. For the purposes of the Scheme, a woman who leaves employment due to pregnancy will be regarded as having left the employment on the day on which she indicates that she does not intend to return to work. In the absence of such indication she will be regarded as having left employment on the last day on which she is entitled to return to work under the Employment Rights Act 1996 or if later, any other date specified in the terms of her employment. 6.4 An Option may, to the extent of the Repayment due under the Sharesave Contract at the date of reaching the Specified Age, be exercised by a Participant within six months following the date he reaches the Specified Age if he continues after that date to hold the office or employment by virtue of which he is eligible to participate in the Scheme. 6.5 No person shall be treated for the purposes of Rule 6.3 as ceasing to hold an office or employment by virtue of which that person is eligible to participate in the Scheme until that person ceases to hold any office or employment in the Company or any Associated Company or any company of which the company has Control. 6.6 An Option granted to a Participant shall lapse upon the occurrence of the earliest of the following: (a) subject to (b) below, six months after the Bonus Date under the Sharesave Contract entered into in connection with the Option; (b) where the Participant dies before the Bonus Date, twelve months after the date of death, and where the Participant dies in the period of six months after the Bonus Date, twelve after the Bonus Date; (c) the expiry of any of the six month periods specified in Rule 6.3 (a) to (d), save that if at the time any of such applicable periods expire, time is running under the twelve month periods specified in Rule 6.2, the Option shall not lapse by reason of this rule 6.6 until the expiry of the relevant twelve month period in Rule 6.2; 10 13 (d) the expiry of any of the period specified in Rules 7.3 to 7.5, save where an Option is released in consideration of the grant of a New Option over New Shares in the Acquiring Company (during one of the periods specified in Rules 7.3 and 7.4) pursuant to Rule 7.6; (e) the Participant ceasing to hold any office or employment with a Participating Company or any Associated Company or any company of which the company has control howsoever that cessation occurs whether lawful or unlawful for any reason other than those specified in Rule 6.3 or as a result of his death; (f) subject to Rule 7.5, the passing of an effective resolution, or the making of an order by the court, for the winding-up of the Company; (g) the Participant being deprived (otherwise than on death) of the legal or beneficial ownership of the Option by operation of law, or doing anything or omitting to do anything which causes him to be so deprived or become bankrupt; and (h) before an Option has become capable of being exercised, the Participant giving notice that he intends to stop paying Monthly Contributions, or being deemed under the terms of the Sharesave Contract to have given such notice by making an application for Repayment of the Monthly Contributions. 7. TAKEOVER, RECONSTRUCTIONS AND AMALGAMATION, AND LIQUIDATION 7.1 If any person obtains Control of the Company as a result of making an offer to acquire Shares which is either unconditional or is made on a condition such that if it is satisfied the person making the offer will have Control of the Company, Option may be exercised within six months of the time when the person making the offer has obtained Control of the Company and any condition subject to which the offer is made has been satisfied or waived. 7.2 For the purpose of Rule 7.1 a person shall be deemed to have obtained Control of the Company if he and others acting in concert with him have together obtained Control of it. 7.3 If any person becomes bound or entitled to acquire Shares under sections 428 to 430F of the Companies Act 1985 an Option may be exercised at any time when that person remains so bound or entitled. 7.4 If, under section 425 of the Companies Act 1985 the court sanctions a compromise or arrangement proposed for the purposes of, or in connection with, a scheme for the reconstruction of the Company or its amalgamation with any other company or companies, an Option may be exercised within six months of the court sanctioning the compromise or arrangement. 11 14 7.5 If a resolution for the voluntary winding-up of the Company is passed, an Option may be exercised within two months from the date of the passing of the resolution. 7.6 If any company ('the Acquiring Company'): (a) obtains Control of the Company as a result of making: (i) a general offer to acquire the whole of the issued ordinary share capital of the Company which is made on a condition such that if it is satisfied the Acquiring Company will have Control of the Company; or (ii) a general offer to acquire all the shares in the Company which are of the same class as the Shares which may be acquired by the exercise of Options, in either case ignoring any Shares which are already owned by it or a member of the same group of companies; or (b) obtains control of the Company in pursuance of a compromise or arrangement sanctioned by the court under section 425 of the Companies Action 1985; or (c) becomes bound or entitled to acquire shares under sections 428 to 430F of the Companies Act 1985, any Participant may at any time within the Appropriate Period, by agreement with the Acquiring Company, release any Option which has not lapsed ("the Old Option") in consideration of the grant to him of an option ("the New Option") which (for the purposes of paragraph 15 of Schedule 9 to the Taxes Act) is equivalent to the Old Option but relates to shares in a different company (whether the Acquiring Company itself or some other company falling within paragraph 10(b) or (c) of Schedule 9 to the Taxes Act). 7.7 The New Option shall not be regarded for the purposes of Rule 7.6 as equivalent to the Old Option unless the conditions set out in paragraph 15(3) of Schedule 9 to the Taxes Act are satisfied, but so that the provisions of the Scheme shall be construed as if: (a) the New Option were granted under the Scheme at the same time as the Old Option; (b) except for the purposes of the definitions of "Participating Company" and "Subsidiary" in Rule 1, the reference to Circle International Group Inc in the definition of "the Company" in Rule 1 were a reference to the different company mentioned in Rule 7.6; 12 15 (c) Rules 12.1 and 12.2 were omitted. 8. MANNER OF EXERCISE 8.1 An Option may only be exercised during the periods specified in Rules 6 and 7, and only with monies not exceeding the amount of the Repayment under the Sharesave Contract entered into in connection therewith as at the date of such exercise. For this purpose, no account shall be taken of such part (if any) of the Repayment of any Monthly Contribution, the due date for the repayment of which under the Sharesave Contract arises after the date of the Repayment. 8.2 Exercise shall be by the delivery to the Secretary of the Company or its duly appointed agent, of an option certificate covering the Shares over which the Option is to be exercised, with the notice of exercise in the prescribed form duly completed and signed by the Participant (or by his duly authorised agent) together with any remittance for the Exercise Price payable, or authority to the Company to withdraw and apply monies equal to the Exercise Price payable, or authority to the Company to withdraw and apply monies equal to the Exercise Price from the Sharesave Contract, to acquire the Shares over which the Option is to be exercised. The effective date of exercise shall be the date of delivery of the notice of exercise. 9. ISSUE OR TRANSFER OF SHARES 9.1 Shares to be issued pursuant to the exercise of an Option shall be allotted within 28 days following the effective date of exercise of the Option. 9.2 The Board shall procure the transfer of Shares to be transferred pursuant to the exercise of an Option within 28 days following the effective date of exercise of the Option. 9.3 Shares to be issued pursuant to the Scheme will rank pari passu in all respects with the Shares then in issue, except that they will not rank for any rights attaching to shares by reference to a record date preceding the date of exercise. 9.4 Shares to be transferred pursuant to the Scheme will be transferred free of all liens, charges and encumbrances and together with all rights attaching thereto, except they will not rank for any rights attaching to Shares by reference to a record date preceding the date of exercise. 9.5 If, and so long as, the Shares are listed on the London Stock Exchange, the Company shall apply for a listing for any Shares issued pursuant to the Scheme as soon as practicable after the allotment thereof. 13 16 10. ADJUSTMENTS 10.1 The number of Shares over which an Option is granted and the Option Price thereof shall be adjusted in such manner as the Option Committee shall determine following any capitalisation issue, rights issue, subdivision, consolidation or reduction of share capital of the Company or any other variation of share capital to the intent that (as nearly as many be without involving fractions of a Share or an Option Price calculated to more than two decimal places) the Exercise Price payable in respect of an Option shall remain unchanged, provided that no adjustment made pursuant to this Rule 10.1 shall be made without the prior approval of the Inland Revenue). 10.2 Subject to Rule 10.3, an adjustment may be made under Rule 10.1 which would have the effect of reducing the Option Price of unissued Shares to less than the nominal value of a Share, but only if, and to the extent that, the Board shall be authorised to capitalise from the reserves of the Company a sum equal to the amount by which the nominal value of the Shares in respect of which the Option is exercisable exceeds the adjusted Exercise Price, and so that on exercise of any Option in respect of which the Option Price has been reduced, the Option Committee shall capitalise and apply such sum (if any) as is necessary to pay up the amount by which the aggregate nominal value of the Shares in respect of which the Option is exercised exceeds the Exercise Price for such Shares. 10.3 Where an Option subsists over both issued and unissued Shares, an adjustment permitted by Rules 10.2 may only be made if the reduction of the Option Price of both the issued and unissued Shares can be made to the same extent. 10.4 The Option Committee may take such steps as it may consider necessary to notify Participants of any adjustments made under this Rule 10 and to call in, cancel, endorse, issue or reissue an Option certificate consequent upon such adjustment. 11. ADMINISTRATION 11.1 Any notice or other communication made under, or in connection with, the Scheme may be given by personal delivery or by sending the same by post, in the case of a company to its registered office and in the case of an individual to his last known address, or, where he is a director or employee of the Company or an Associated Company, either to his last known address or to the address of the place of business at which he performs the whole or substantially the whole of the duties of his office or employment, and where a notice or other communication is given by first-class post, it shall be deemed to have been received 48 hours after it was put into the post properly addressed and stamped. 11.2 The Company may distribute to Participants copies of any notice or document normally sent by the Company to the holders of Shares. 14 17 11.3 If any option certificate shall be worn out, defaced or lost, it may be replaced on such evidence being provided as the Board may require. 11.4 The Company shall at all times keep available for allotment unissued Shares at least sufficient to satisfy all Options under which Shares may be subscribed or procure that sufficient Shares are available for transfer to satisfy all Options under which Shares may be acquired. 11.5 The decision of the Option Committee in any dispute relating to an Option or the due exercise thereof or any other matter in respect of the Scheme shall be final and conclusive. 11.6 The costs of introducing and administering the Scheme shall be borne by the Company. 12. ALTERATIONS 12.1 Subject to the provisions of this Rule 12, the Option Committee may at any time alter or add to all or any of the provisions of the Scheme in any respect except that no such alteration or addition shall take effect until approved by the Inland Revenue. 12.2 No alteration or addition to the advantage of present or future Option Holders shall be made without prior approval by ordinary resolution of the members of the Company in general meeting to any of the provisions of the Scheme as related to: (i) the persons to whom Options may be granted; (ii) limitations on the grant of Options; (iii) the determination of the price at which Shares may be acquired by the exercise of Options; (iv) the adjustment of Options; (v) the restrictions on the exercise of Options; (vi) the rights to be attached upon their issue to Shares issued upon the exercise of Options; (vii) the rights of Participants on the winding up of the company; (viii) the transferability of Options; and (ix) the terms of this Rule 12. 15 18 12.3 Shareholder approval shall not be required for any alteration or addition which is necessary or desirable in order to: (i) obtain or maintain Inland Revenue approval of the Scheme under Schedule 9 to the Taxes Act or any other enactment; or (ii) comply with or take account of the provisions of any proposes or existing legislation, or to take advantage of any changes to the legislation; or (iii) obtain or maintain favourable taxation treatment of the Company, and Subsidiary or any Option Holder. This exception does not apply to any alteration or addition to the definition of "Option Price" and the limits in Rule 5. 13. GENERAL 13.1 The Scheme shall terminate upon the tenth anniversary of its adoption by the Company in general meeting or at any earlier time by the passing of a resolution by the Board or an ordinary resolution of the Company in general meeting. Termination of the Scheme shall be without prejudice to the subsisting rights of Participants. 13.2 The Company and any Subsidiary of the Company may provide money to the trustees of any trust or any other person to enable them or him to acquire Shares to be held for the purposes of the Scheme, or enter into any guarantee or indemnity for these purposes, to the extent permitted by section 153 of the Companies Act 1985, provided that any trust deed to be made for this purpose shall, at a time when the Scheme is approved by the Inland Revenue under Schedule 9 to the Taxes Act, have previously been submitted to the Inland Revenue. 13.3 The rights and obligations of any individual under the terms of his office or employment with the Company, a Participating Company, a Subsidiary of the Company, or an Associated Company shall not be affected by his participation in the Scheme or any right which he may have to participate therein, and an individual who participates therein shall waive all and any rights to compensation or damages in consequence of the termination of his office or employment with any such company for any reason whatsoever insofar as those rights arise, or may arise, from his ceasing to have rights under or be entitled to exercise any Option under the Scheme as a result of such termination, or from the loss or diminution in value of such rights or entitlements. 16 19 13.4 Notwithstanding any other provision of the Scheme the Board may amend or add to the provisions of the Scheme and the terms of Options as they consider necessary or desirable to take account of or to mitigate or to comply with relevant overseas taxation, securities or exchange control laws provided that the terms of Options granted under this Scheme are not more favourable than the terms of options granted to other Eligible Employees. 13.5 These Rules shall be governed by and construed in accordance with English law. 17 EX-5.1 4 h80652a1ex5-1.txt OPINION OF BAKER BOTTS L.L.P. 1 EXHIBIT 5.1 [BAKER BOTTS L.L.P. LETTERHEAD] October 2, 2000 EGL, Inc. 15350 Vickery Drive Houston, Texas 77032 Ladies and Gentlemen: As set forth in Post-Effective Amendment No. 1 on Form S-8 (the "Post-Effective Amendment") to the Registration Statement on Form S-4 (No. 333-42310) to be filed by EGL, Inc., a Texas corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to (i) 827,777 shares (the "1994 Plan Shares") of common stock, par value $0.001 per share (the "Common Stock"), of the Company that may be issued pursuant to the terms of the Circle International Group, Inc. 1994 Omnibus Equity Incentive Plan (the "1994 Plan"), (ii) 25,000 shares (the "Purchase Plan Shares") of Common Stock that may be issued pursuant to the terms of the Circle International Group, Inc. Employee Stock Purchase Plan (the "Purchase Plan"), (iii) 116,450 shares (the "1999 Plan Shares") of Common Stock that may be issued pursuant to the terms of the Circle International Group, Inc. 1999 Stock Option Plan (the "1999 Plan"), (iv) 158,725 shares (the "2000 Plan Shares") of Common Stock that may be issued pursuant to the terms of the Circle International Group, Inc. 2000 Stock Option Plan (the "2000 Plan"), and (v) 20,000 shares (the "U.K. Plan Shares" and, together with the 1994 Plan Shares, the 1999 Plan Shares and the 2000 Plan Shares, the "Incentive Plan Shares") of Common Stock that may be issued pursuant to the terms of the Circle International Group, Inc. U.K. Sharesave Scheme (the "U.K. Plan" and, together with the 1994 Plan, the 1999 Plan and the 2000 Plan, the "Incentive Plans"), certain legal matters in connection with the Incentive Plan Shares and the Purchase Plan Shares (collectively, the "Shares") are being passed upon for the Company by us. At your request, this opinion is being furnished to you for filing as Exhibit 5.1 to the Post-Effective Amendment. In our capacity as your counsel in the connection referred to above and as a basis for the opinions hereinafter expressed, we have examined (i) the Company's Second Amended and Restated Articles of Incorporation and Amended and Restated Bylaws, each as amended to date, (ii) the Agreement and Plan of Merger dated as of July 2, 2000 by and among the Company, EGL Delaware I, Inc., a Delaware corporation, and Circle International Group, Inc., a Delaware corporation, pursuant to which the Company assumed all options outstanding under the Incentive Plans and the Purchase Plan, (iii) copies of the Incentive Plans and the Purchase Plan, (iv) originals, or copies certified or otherwise identified, of corporate records of the Company, (v) certificates of public officials and of representatives of the Company and (vi) statutes and other instruments or documents. In giving such opinions, we have relied upon a 2 EGL, Inc. -2- October 2, 2000 certificate of officers of the Company with respect to the accuracy of the material factual matters contained in such certificate. We have assumed that all signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete, that all documents submitted to us as copies are true and correct copies of the originals thereof and that all information submitted to us was accurate and complete. In addition, we have assumed for purposes of paragraphs 2 and 3 below that the consideration received by the Company for the Shares will be not less than the par value of the Shares. On the basis of the foregoing, and subject to the assumptions, limitations and qualifications hereinafter set forth, we are of the opinion that: 1. The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Texas. 2. The Incentive Plan Shares subject to original issuance by the Company pursuant to the terms and conditions of awards granted under the Incentive Plans have been duly authorized by all necessary corporate action on the part of the Company. Upon issuance and sale of such Incentive Plan Shares from time to time pursuant to the terms and conditions of such awards granted under the Incentive Plans, including, if applicable, the lapse of any restrictions relating thereto, the satisfaction of any performance conditions associated therewith and any requisite determinations by or pursuant to the authority of the Board of Directors or a duly constituted and acting committee thereof as provided therein, and, in the case of stock options, the exercise thereof and payment for such Incentive Plan Shares as provided therein, such Incentive Plan Shares will be validly issued, fully paid and nonassessable. 3. The Purchase Plan Shares subject to original issuance by the Company have been duly authorized by all necessary corporate action on the part of the Company, and when and to the extent issued and sold from time to time in accordance with the terms and conditions of the Purchase Plan and upon payment therefor as provided in the Purchase Plan, such Purchase Plan Shares will be validly issued, fully paid and nonassessable. 3 EGL, Inc. -3- October 2, 2000 This opinion is limited to the original issuance of Shares by the Company and does not cover shares of Common Stock delivered by the Company out of shares reacquired by it or purchased other than from the Company. We are members of the Texas Bar and the opinions set forth above are limited in all respects to matters of Texas law as in effect on the date hereof. We hereby consent to the filing of this opinion as an exhibit to the Post-Effective Amendment. Very truly yours, /s/ BAKER BOTTS L.L.P. EX-23.1 5 h80652a1ex23-1.txt CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 on Form S-8 to Registration Statement No. 333-42310 on Form S-4 of EGL, Inc. of our report dated November 8, 1999, except as to the information presented in the last paragraph of Note 11 and in Note 12, for which the date is December 15, 1999, relating to the financial statements of EGL, Inc., which appear in EGL, Inc.'s Annual Report on Form 10-K for the year ended September 30, 1999. We also consent to the reference to us under the heading "Experts" in such Post-Effective Amendment No. 1. /s/ PricewaterhouseCoopers LLP Houston, Texas October 2, 2000 EX-23.2 6 h80652a1ex23-2.txt CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Post-Effective Amendment No. 1 on Form S-8 to Registration Statement No. 333-42310 on Form S-4 of EGL, Inc. of our report dated March 29, 2000, appearing in the Annual Report on Form 10-K of Circle International Group, Inc. for the year ended December 31, 1999. We also consent to the reference to us under the heading "Experts" in such Post-Effective Amendment No. 1. /s/ Deloitte & Touche LLP Deloitte & Touche LLP San Francisco, California September 29, 2000 -----END PRIVACY-ENHANCED MESSAGE-----