As filed with the Securities and Exchange Commission on May 12, 2015
Registration
No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE
SECURITIES ACT OF 1933
SOTHEBYS
(Exact
name of registrant as specified in its charter)
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Delaware |
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38-2478409 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
1334 York Avenue
New York, New York 10021
(Address of principal executive offices)
SOTHEBYS STOCK COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
Jonathan A. Olsoff
Senior Vice President, Worldwide General Counsel and Secretary
Sothebys
1334 York
Avenue
New York, New York 10021
(212) 606-7000
(Name,
address and telephone number of agent for service)
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting
company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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x |
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Accelerated filer |
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¨ |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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¨ |
CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered |
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Amount
to be
registered |
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Proposed
maximum offering
price per share (1) |
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Proposed
maximum aggregate
offering price |
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Amount of
registration fee |
Common Stock |
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200,000 (2) |
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$43.24 |
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$8,648,000.00 |
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$1,005.00 |
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(1) |
Computed, pursuant to Rule 457(c), solely for the purpose of calculating the registration fee based on the average of the high and low prices of the Common Stock as reported on the New York Stock Exchange on May 7,
2015. |
(2) |
The Sothebys Stock Compensation Restricted Stock Unit Plan (As Amended and Restated Effective May 7, 2015) (the Current Plan), is the successor plan to several prior plans that originated as the
Sothebys Holdings, Inc. Amended and Restated Director Stock Ownership Plan (collectively, the Predecessor Plans). The shares of common stock being registered pursuant to this Form S-8 are in addition to the shares of common stock
previously registered under the Predecessor Plans pursuant to previously filed registration statements on Form S-8. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents by Reference. |
The Registrant incorporates by reference into
this Registration Statement the following documents:
(a) |
the Registrants Annual Report on Form 10-K (File No. 001-09750) for the fiscal year ended December 31, 2014 filed with the Securities and Exchange Commission (the Commission) on March 2,
2015 pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act); |
(b) |
the Registrants Quarterly Report on Form 10-Q for the period ended March 31, 2015, filed with the Commission on May 11, 2015; |
(c) |
The Registrants Current Reports on Form 8-K filed with the Commission on January 6, 2015, January 26, 2015, February 13, 2015, February 19, 2015, March 2, 2015, March 18, 2015,
and May 11, 2015, respectively, except to the extent that information in any of those reports was furnished and not filed with the Commission; |
(d) |
Item 1 of the Registrants Registration Statement on Form 8-A, dated March 7, 1990 (File No. 001-09750) and filed with the Commission on March 8, 1990 pursuant to Section 12 of the Exchange
Act as amended by Amendment No.1 to Form 8-A, dated November 21, 2006 (File No. 001-09750), and filed with the Commission on November 21, 2006; and |
(e) |
all documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that deregisters all such securities then remaining to be sold. |
Any
statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be 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.
Item 6. |
Indemnification of Directors and Officers. |
Pursuant to the Delaware General Corporation
Law, as amended (the DGCL), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceedings, by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another entity, against expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceedings if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or proceedings, had no reasonable cause to believe his conduct was unlawful.
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The DGCL does not permit indemnification in any derivative action, which is an action by or in
the right of the corporation, if such person shall have been adjudged to be liable to the corporation unless and only to the extent that a court determines upon application that, despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity for such expenses that the court deems proper. Any such person who successfully defends any proceedings subject to the DGCLs indemnification provisions must be indemnified by the corporation for reasonable
expenses incurred in connection therewith, including attorneys fees.
To the fullest extent permitted by the DGCL, the
Registrants Certificate of Incorporation and By-Laws require the Registrant to indemnify its directors and officers and the directors, officers, trustees, employees and agents of other entities who are serving in such capacities at the request
of the Registrant who, in such capacity, are a party or threatened to be made a party to any proceeding. The Registrant will also indemnify these individuals if the basis of a proceeding is alleged action in any other capacity while serving in one
of the stated capacities. Indemnified persons are covered even though they are no longer serving in their stated capacity at the time indemnification is sought or the proceeding for which indemnification is sought commences. Indemnification is
available to such persons against all liability and loss suffered and expenses reasonably incurred by such persons in connection with any proceeding. In certain cases, the indemnified person will be entitled to the advancement of expenses. To the
extent authorized from time to time by its Board of Directors or the Registrants Chief Executive Officer, the Registrant may provide indemnification and expense advancement rights to any employee or agent of the Registrant.
The Registrants By-Law indemnification rights are contract rights of each indemnified person that vest at the time of the indemnified
persons service in one of the stated capacities and continue after the persons service ends. The Registrant, its Board of Directors and its stockholders may not terminate these rights with respect to a persons service prior to the
date of such termination. Any amendment of the By-Laws that in any way diminishes or limits any right of indemnification shall be prospective only and shall not adversely affect any indemnification right as to any actual or alleged act or omission
previously existing.
The Registrants By-Laws contain procedures for individuals to obtain indemnification from the Registrant.
As permitted under the DGCL, the Registrants Certificate of Incorporation eliminates the liability of its directors to the Registrant or
its stockholders for monetary damages for breach of the directors fiduciary duties, except to the extent prohibited by the DGCL. In addition, the Registrant maintains directors and officers liability insurance that, under certain
circumstances, would cover alleged violations of the DGCL.
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Exhibit
Number |
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Description |
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3.1 |
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Certificate of Incorporation of the Registrant, as amended as of June 30, 2006, incorporated by reference to Exhibit 3.1 to the Registrants current report on Form 8-K, filed on July 7, 2006 with the Commission. |
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3.2 |
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Amended and Restated By-Laws of the Registrant, amended through November 4, 2010, incorporated by reference to Exhibit 3.2 to the Registrants Third Quarter Form 10-Q for 2010, filed on November 8, 2010 with the
Commission. |
3
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5 |
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Opinion of Jacobs Law Group, PC, counsel to the Registrant, as to the legality of the shares. |
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10.1 |
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Sothebys Stock Compensation Plan for Non-Employee Directors, dated and effective as of May 7, 2015, incorporated by reference to Appendix A to the Registrants Definitive Proxy Statement for the 2015 Annual Meeting of
Stockholders, filed on March 26, 2015 with the Commission. |
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23(a) |
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Consent of Deloitte & Touche LLP. |
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23(b) |
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Consent of Jacobs Law Group, PC (included in Exhibit 5). |
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24 |
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Powers of Attorney (included on signature page). |
The Registrant hereby undertakes:
(a) 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, as amended (the Act);
(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 thereto) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the 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) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the
effective Registration Statement; and
(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)(i) and (a)(ii) do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
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(b) That, for the purpose of determining any liability under the Act, each such post-effective amendment will be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof.
(c) 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.
(d) That, for purposes of determining any liability under the Act, each filing of the Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act 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.
(e) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on the 12th day of May, 2015.
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SOTHEBYS |
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By: |
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/s/ Thomas S. Smith, Jr. |
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Thomas S. Smith, Jr., President and Chief
Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints THOMAS S. SMITH, JR.
and PATRICK S. MCCLYMONT, and each of them, as his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments), supplements and other documents related to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or any of them, or their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the date indicated.
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Signature |
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Title |
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Date |
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/s/ Domenico De Sole
Domenico De Sole |
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Chairman of the Board |
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May 12, 2015 |
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/s/ Thomas S. Smith, Jr.
Thomas S. Smith, Jr. |
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President,
Chief Executive Officer and Director |
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May 12, 2015 |
6
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/s/ The Duke of Devonshire
The Duke of Devonshire |
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Deputy Chairman of the Board |
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May 12, 2015 |
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/s/ Patrick S. McClymont
Patrick S. McClymont |
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Executive Vice President and Chief Financial Officer |
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May 12, 2015 |
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/s/ Kevin M. Delaney
Kevin M. Delaney |
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Senior Vice President,
Controller and Chief Accounting Officer |
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May 12, 2015 |
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/s/ John M. Angelo
John M. Angelo |
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Director |
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May 12, 2015 |
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/s/ Jessica M. Bibliowicz
Jessica M. Bibliowicz |
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Director |
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May 12, 2015 |
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/s/ Kevin C. Conroy
Kevin C. Conroy |
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Director |
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May 12, 2015 |
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/s/ Daniel S. Loeb
Daniel S. Loeb |
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Director |
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May 12, 2015 |
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/s/ Olivier Reza
Olivier Reza |
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Director |
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May 12, 2015 |
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/s/ Marsha E. Simms
Marsha E. Simms |
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Director |
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May 12, 2015 |
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/s/ Robert S. Taubman
Robert S. Taubman |
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Director |
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May 12, 2015 |
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/s/ Diana L. Taylor
Diana L. Taylor |
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Director |
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May 12, 2015 |
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/s/ Dennis M. Weibling
Dennis M. Weibling |
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Director |
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May 12, 2015 |
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/s/ Harry J. Wilson
Harry J. Wilson |
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Director |
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May 12, 2015 |
8
Exhibit Index
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Exhibit
Number |
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Description |
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3.1 |
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Certificate of Incorporation of the Registrant, as amended as of June 30, 2006, incorporated by reference to Exhibit 3.1 to the Registrants current report on Form 8-K, filed on July 7, 2006 with the Commission. |
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3.2 |
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Amended and Restated By-Laws of the Registrant, amended through November 4, 2010, incorporated by reference to Exhibit 3.2 to the Registrants Third Quarter Form 10-Q for 2010, filed on November 8, 2010 with the
Commission. |
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5 |
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Opinion of Jacobs Law Group, PC, counsel to the Registrant, as to the legality
of the shares. |
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10.1 |
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Sothebys Stock Compensation Plan for Non-Employee Directors, dated and effective as of May 7, 2015, incorporated by reference to Appendix A to the Registrants Definitive Proxy Statement for the 2015 Annual Meeting of
Stockholders, filed on March 26, 2015 with the Commission. |
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23(a) |
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Consent of Deloitte & Touche LLP. |
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23(b) |
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Consent of Jacobs Law Group, PC (included in Exhibit 5). |
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24 |
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Powers of Attorney (included on signature page). |
9
EXHIBIT 5
[LETTERHEAD OF JACOBS LAW GROUP PC]
May 12, 2015
Sothebys
1334 York Avenue
New York, New York 10021
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Re: |
Registration Statement on Form S-8/Sothebys Stock Compensation Plan for Non-Employee Directors |
Ladies
and Gentlemen:
This firm has acted as counsel to Sothebys, a Delaware corporation (the Company), with respect to
the filing on or about the date of this opinion letter of a Registration Statement on Form S-8 (the Registration Statement) under the United States Securities Act of 1933, as amended (the Act), with the
Securities and Exchange Commission. The Registration Statement relates to the proposed offering and sale of up to 200,000 shares (the Shares) of the Companys Common Stock, par value $0.01 per share, reserved for issuance
under the Sothebys Stock Compensation Plan for Non-Employee Directors, as amended and restated effective May 7, 2015 ( the Plan).
We have reviewed originals or copies of various documents and filings, certified or otherwise identified to our satisfaction, of corporate
records of the Company and certificates of public officials and officers of the Company, including, by way of example and not of limitation, the Registration Statement and the following documents, certified as in effect as of the date of this
opinion letter by the Secretary of the Company: (i) the Companys Certificate of Incorporation; (ii) the Companys Amended and Restated Bylaws; (iii) resolutions of the Companys Board of Directors approving the Plan
and the Registration Statement; (iv) the certificate and report of inspector of election evidencing Company stockholder approval of the Plan at the 2015 Annual Meeting of the Stockholders of the Company; and (v) the Plan.
In rendering the opinions expressed below, we have assumed the authenticity of all documents and records examined, the conformity with the
original documents of all documents submitted to us as copies and the genuineness of all signatures. In addition, we have assumed, and have not verified, the accuracy of the facts in each document or record we have reviewed.
Based upon and subject to the foregoing and the further qualifications set forth below, we are of the opinion that the Shares have been duly
authorized and, when issued in accordance with the Plan, that the Shares will be validly issued, fully paid and non-assessable.
One or
more of our attorneys are admitted to practice in the Commonwealth of Pennsylvania and the States of New York and New Jersey. We have made such investigation of
JACOBS LAW GROUP, PC
Sothebys
May 12, 2015
Page 2
the law of the State of Delaware as we have considered appropriate for the purpose of rendering the opinions
expressed above. The foregoing opinions are limited to the General Corporation Law of the State of Delaware (as amended, the Law), including the applicable provisions of the Delaware Constitution and reported judicial decisions
interpreting the Law.
This opinion is based solely upon laws and regulations in existence as of the date of this opinion as they
presently apply and to the facts as they presently exist. In rendering this opinion, we are not assuming any obligation to advise the Company of changes in law or fact (or the effect of any such changes on the opinions expressed in this opinion
letter) that may in the future come to our attention.
This opinion is being furnished to the Company solely for its benefit in connection
with the subject matter of this opinion, is not to be used, quoted, circulated or otherwise referred to for any other purpose without our prior express written consent and may not be relied on by any entity or individual other than the Company
without our express prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration Statement. In
rendering this opinion, we do not admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Securities and Exchange Commission adopted pursuant to the Act.
Very truly yours,
/s/ Jacobs Law Group PC
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 2, 2015, relating to the financial statements and the financial statement schedule of Sothebys (the Company) and
the effectiveness of the Companys internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2014.
/s/ Deloitte & Touche LLP
May 12, 2015
New York, New York
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