<PAGE> 1
As filed with the Securities and Exchange Commission on March 3, 1998
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
RESTRAC, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-2935271
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
91 HARTWELL AVENUE
LEXINGTON, MASSACHUSETTS 02173
(781) 869-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
AMENDED AND RESTATED RESTRAC, INC. 1996 STOCK OPTION AND GRANT PLAN
AMENDED AND RESTATED RESTRAC, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
------------------------------------
LARS D. PERKINS
CHIEF EXECUTIVE OFFICER
RESTRAC, INC.
91 HARTWELL AVENUE
LEXINGTON, MASSACHUSETTS 02173
(781) 869-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------------------
WITH COPIES TO:
John J. Egan III, Esq.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1514
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered (1) Price Per Share Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $5.75(2) $5,750,000 $1,743
===================================================================================================================================
</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares as may be issuable pursuant to the Amended and Restated
Restrac, Inc. 1996 Stock Option and Grant Plan and the Amended and Restated
Restrac, Inc. 1996 Employee Stock Purchase Plan as a result of a stock
dividend, reverse stock split, split-up, recapitalization or other similar
event.
(2) This estimate is based on the average of the high and low prices of the
Common Stock of Restrac, Inc., par value $.01 per share, as reported on the
Nasdaq National Market on February 27, 1998, pursuant to Rule 457(c) and
(h) under the Securities Act of 1933, solely for purposes of determining
the registration fee with respect to the shares of Common Stock to be
issued under the Amended and Restated Restrac, Inc. 1996 Stock Option and
Grant Plan and the Amended and Restated Restrac, Inc. 1996 Employee Stock
Purchase Plan.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The contents of Restrac, Inc.'s Registration Statement on Form S-8 (File
No. 333-03521) are incorporated herein by reference.
Item 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement:
+4.1 Third Amended and Restated Certificate of Incorporation of Restrac,
Inc.
+4.2 Amended and Restated By-Laws of Restrac, Inc.
4.3 Amended and Restated Restrac, Inc. 1996 Stock Option and Grant Plan.
4.4 Amended and Restated Restrac, Inc. 1996 Employee Stock Purchase Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Power of Attorney (included on the signature page of this registration
statement).
- --------------------
+ Incorporated by reference to the relevant exhibit to the Restrac, Inc.
Registration Statement on Form S-1, as amended, (File No. 333-03521) which
was originally filed with the Commission on May 10, 1996.
2
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lexington, Commonwealth of Massachusetts on this 27th
day of February, 1998.
RESTRAC, INC.
By:/s/ Lars D. Perkins
--------------------------------------
Lars D. Perkins
Director and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Restrac, Inc. hereby severally constitute Lars D. Perkins and
Martin J. Fahey and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement filed herewith and any
and all amendments to said Registration Statement, and generally to do all such
things in our names and in our capacities as officers and directors to enable
Restrac, Inc. to comply with the provisions of the Securities Act of 1933, and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Lars D. Perkins Director and Chief Executive Officer February 27, 1998
- ----------------------------------- (Principal Executive Officer)
Lars D. Perkins
/s/ Martin J. Fahey Director, President and Chief February 27, 1998
- ----------------------------------- Operating Officer
Martin J. Fahey (Principal Executive Officer)
/s/ Cynthia G. Eades Chief Financial Officer February 18, 1998
- ----------------------------------- (Principal Financial Officer
Cynthia G. Eades and Principal Accounting Officer)
/s/ Russell J. Campanello Director February 26, 1998
- -----------------------------------
Russell J. Campanello
/s/ J. Paul Costello Director February 27, 1998
- -----------------------------------
J. Paul Costello
/s/ A. Bruce Johnston Director February 27, 1998
- -----------------------------------
A. Bruce Johnston
</TABLE>
3
<PAGE> 4
EXHIBIT INDEX
-------------
Exhibit No. Description
- ----------- -----------
+4.1 Third Amended and Restated Certificate of Incorporation of Restrac,
Inc.
+4.2 Amended and Restated By-Laws of Restrac, Inc.
4.3 Amended and Restated Restrac, Inc. 1996 Stock Option and Grant Plan.
4.4 Amended and Restated Restrac, Inc. 1996 Employee Stock Purchase Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Power of Attorney (included on the signature page of this registration
statement).
- ---------------------------
+ Incorporated by reference to the relevant exhibit to the Restrac, Inc.
Registration Statement on Form S-1, as amended, (File No. 333-03521) which
was originally filed with the Commission on May 10, 1996.
4
<PAGE> 1
EXHIBIT 4.3
AMENDED AND RESTATED
RESTRAC, INC.
1996 Stock Option and Grant Plan
--------------------------------
1. PURPOSE
This Stock Option and Grant Plan (the "Plan") is intended as a
performance incentive for officers, employees, directors, consultants and other
key persons of Restrac, Inc. (the "Company") or its Subsidiaries (as hereinafter
defined) to enable the persons to whom options are granted (the "Optionees") or
to whom shares of common stock are granted (the "Grantees") to acquire or
increase a proprietary interest in the success of the Company. The Company
intends that this purpose will be effected by the granting of "incentive stock
options" ("Incentive Options") as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), nonqualified stock options ("Nonqualified
Options"), including, without limitation, grants of Nonqualified Options to
members of the Board of Directors of the Company and consultants and other key
persons who provide services to the Company or its Subsidiaries (regardless of
whether they are also employees), and outright grants of common stock under the
Plan. The term "Subsidiaries" includes any corporations in which stock
possessing fifty percent or more of the total combined voting power of all
classes of stock is owned directly or indirectly by the Company.
<PAGE> 2
2. OPTIONS TO BE GRANTED AND ADMINISTRATION
(a) Options granted under the Plan may be either Incentive Options
or Nonqualified Options, and shall be designated as such at the time of grant.
To the extent that any option intended to be an Incentive Option shall fail to
qualify as an "incentive stock option" under the Code, such option shall be
deemed to be a Nonqualified Option.
(b) The Plan shall be administered by a committee (the " Committee")
of not less than two directors of the Company appointed by the Board of
Directors of the Company (the "Board of Directors") each of whom is not an
employee of the Company or any of its Subsidiaries and is a "disinterested
person" within the meaning of Rule 16b-3(c)(2)(i) promulgated under the
Securities Exchange Act of 1934, as amended (the "Act") through August 14, 1996
and is a "non-employee director" within the meaning of Rule 16(b)-3(b)(3) of the
Act on and after August 15, 1996. On and after the Plan becomes subject to
Section 162(m) of the Code, each member of the Committee also shall be an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder. On and after August 15, 1996, the Plan may
also be administered by the Board of Directors, and all references to the
"Committee" herein may also be deemed to refer to the Board of Directors on and
after August 15, 1996.
(c) Subject to the terms and conditions of the Plan, the Committee
shall have the power:
(i) to determine from time to time the options or stock to
be granted to eligible persons under the Plan, to prescribe the terms
and provisions (which need not be identical) of options or stock granted
under the Plan to such persons and to approve the grant of options or
stock, as the case may be;
(ii) to construe and interpret the Plan and grants thereunder
and to establish,
<PAGE> 3
amend, and revoke rules and regulations for administration of the Plan.
In this connection, the Committee may correct any defect or supply any
omission, or reconcile any inconsistency in the Plan, in any option
agreement, or in any related agreements, in the manner and to the extent
it shall deem necessary or expedient to make the Plan fully effective;
(iii) to accelerate the exercisability or vesting of all or
any portion of any option;
(iv) subject to the provisions of Section 5(a), to extend the
period in which options may be exercised;
(v) generally, to exercise such powers and to perform such
acts as are deemed necessary or expedient to promote the best interests
of the Company with respect to the Plan.
All decisions and determinations by the Committee in the exercise of its powers
shall be final and binding upon the Company, the Optionees and the Grantees.
<PAGE> 4
3. STOCK
(a) The stock granted under the Plan, or subject to the options
granted under the Plan, shall be shares of the Company's authorized but unissued
common stock, par value $.01 per share (the "Common Stock"). The total number of
shares that may be issued under the Plan shall not exceed an aggregate of
1,708,156 shares of Common Stock (which such number reflects a three-for-two
stock split effected as a stock dividend on or prior to the date hereof). On and
after the date the Plan is subject to Section 162(m) of the Code, options with
respect to no more than 400,000 shares of Common Stock may be granted to any one
individual during any one calendar year period. Such numbers shall be subject to
adjustment as provided in Section 7 hereof.
(b) Whenever any outstanding option under the Plan expires, is
canceled or is otherwise terminated (other than by exercise), the shares of
Common Stock allocable to the unexercised portion of such option may again be
the subject of options or grants of Common Stock under the Plan.
4. ELIGIBILITY
(a) Incentive Options may be granted only to officers or other
employees of the Company or its Subsidiaries, including members of the Board of
Directors who are also employees of the Company or its Subsidiaries.
Nonqualified Options may be granted to officers or other employees of the
Company or its Subsidiaries, members of the Board of Directors and consultants
and other key persons who provide services to the Company or its Subsidiaries
(regardless of whether they are also employees). Grants of Common Stock may be
made to any officer, director, employee, consultant or other key person of the
Company or its Subsidiaries.
<PAGE> 5
(b) No person shall be eligible to receive any Incentive Option
under the Plan if, at the date of grant, such person beneficially owns stock
representing in excess of 10% of the voting power of all outstanding capital
stock of the Company (a "Ten Percent Stockholder") unless notwithstanding
anything in this Plan to the contrary (i) the purchase price for the Common
Stock subject to such option is at least 110% of the fair market value of such
stock at the time of the grant and (ii) the option by its terms is not
exercisable more than five years from the date of grant thereof.
(c) Notwithstanding any other provision of the Plan, to the extent
that the aggregate fair market value of the stock with respect to which
Incentive Options are exercisable for the first time by any individual during
any calendar year (under all plans of the Company and its parent and
Subsidiaries) exceeds $100,000, the options attributable to the excess over
$100,000 shall be treated as Nonqualified Options under the Plan. Such annual
limitation shall be applied by taking Incentive Options into account in the
order in which they were granted.
(d) Each individual who first joins the Board of Directors as a
non-employee Director shall automatically be granted a Nonqualified Option to
acquire 5,000 shares of Common Stock on the first day such individual serves as
a non-employee Director. Each non-employee Director who is serving as Director
of the Company on each October 1, beginning with October 1, 1996, shall
automatically be granted on such day a Nonqualified Option to acquire 2,500
shares of Common Stock. The exercise price per share for the Common Stock
covered by an option granted hereunder shall be equal to the "fair market value"
(determined pursuant to the formula set forth in Section 5(d) hereof) of the
Common Stock on the date the option is granted, and except as otherwise provided
in this Section 4(d), any options granted hereunder shall be subject to the
other provisions of this Plan.
<PAGE> 6
An option granted under this Section 4(d) shall be exercisable with
respect to one-fourth of the total shares to which the option relates on each
anniversary of the grant date; provided, however, that any option so granted
shall become immediately exercisable in full upon the termination of service of
the non-employee Director because of disability or death. No option issued under
this Section 4(d) shall be exercisable after the expiration of ten years from
the date upon which such option is granted. For purposes of this Section 4(d),
"disability" means an individual's inability to perform his normal required
services for the Company and its Subsidiaries for a period of six consecutive
months by reason of the individual's mental or physical disability, as
determined by the Committee in good faith in its sole discretion.
The provisions of this Section 4(d) shall apply only to options granted
or to be granted to non-employee Directors, and shall not be deemed to modify,
limit or otherwise apply to any other provision of this Plan or to any option
issued under this Plan to an Optionee who is not an non-employee Director of the
Company. To the extent inconsistent with the provisions of any other Section of
this Plan, the provisions of this Section 4(d) shall govern the rights and
obligations of the Company and non-employee Directors respecting options granted
or to be granted to non-employee Directors.
5. TERMS OF THE OPTION AGREEMENTS
Subject to the terms and conditions of the Plan, each option agreement
shall contain such provisions as the Committee shall from time to time deem
appropriate. Option agreements need not be identical, but each option agreement
by appropriate language shall include the substance of all of the following
provisions:
(a) EXPIRATION; TERMINATION OF EMPLOYMENT. Notwithstanding any other
provision of
<PAGE> 7
the Plan or of any option agreement, each option shall expire on the date
specified in the option agreement, which date in the case of any Incentive
Option shall not be later than the tenth anniversary of the date on which the
option was granted; provided, however, that if such Incentive Option is held by
a Ten Percent Stockholder, the expiration date of such Incentive Option shall
not be later than five years from the date of grant thereof. If an Optionee's
employment or service as a director with the Company and its Subsidiaries
terminates for any reason, the Committee may in its discretion provide, at any
time, that any outstanding option granted to such Optionee under the Plan shall
be exercisable, subject to the expiration date of such option, for such period
following termination of employment as may be specified by the Committee, which
period for purposes of Incentive Options shall not exceed three months where
such termination is not due to death or disability (within the meaning of
Section 22(e)(3) of the Code) or one year where such termination is due to death
or disability. If an Optionee's employment or service as a director with the
Company and its Subsidiaries terminates due to the Optionee's willful actions
against the interests of the Company, the option may be terminated upon written
notice to the Optionee; in such a case, the option will cease to be exercisable
immediately upon the Optionee's receipt of such written notice.
(b) MINIMUM SHARES EXERCISABLE. The minimum number of shares with
respect to which an option may be exercised at any one time shall be fifty (50)
shares, or such lesser number as is subject to exercise under the option at the
time, provided that no fractional shares may be issued.
(c) EXERCISE. Each option shall be exercisable in such installments
(which need not be equal) and at such times as may be designated by the
Committee. To the extent not exercised, installments shall accumulate and be
exercisable, in whole or in part, at any time after becoming
<PAGE> 8
exercisable, but not later than the date the option expires.
(d) PURCHASE PRICE. The purchase price per share of Common Stock
subject to each option shall be determined by the Committee; provided, however,
that the purchase price per share of Common Stock subject to each Incentive
Option shall be not less than the fair market value of the Common Stock on the
date such Incentive Option is granted. For the purposes of the Plan, the fair
market value of the Common Stock shall be determined in good faith by the
Committee; provided, however, that (i) if the Common Stock is admitted to
quotation on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") Small-Cap Market on the date the option is granted, the fair
market value shall not be less than the average of the highest bid and lowest
asked prices of the Common Stock on NASDAQ reported for such date or, if no
prices were reported for such date, for the last date preceding such date on
which prices were reported, (ii) if the Common Stock is admitted to trading on a
national securities exchange or the NASDAQ National Market System on the date
the option is granted, the fair market value shall not be less than the closing
price reported for the Common Stock on such exchange or system for such date or,
if no sales were reported for such date, for the last date preceding such date
for which a sale was reported, and (iii) the fair market value of the Common
Stock on the effective date of the registration statement for the Company's
initial public offering shall be the initial offering price.
(e) RIGHTS OF OPTIONEES. No Optionee shall be deemed for any purpose
to be the owner of any shares of Common Stock subject to any option unless and
until (i) the option shall have been exercised pursuant to the terms thereof,
(ii) all requirements under applicable law and regulations shall have been
complied with to the satisfaction of the Company, (iii) the Company shall have
issued and delivered the shares to the Optionee, and (iv) the Optionee's name
shall have
<PAGE> 9
been entered as a stockholder of record on the books of the Company. Thereupon,
the Optionee shall have full voting, dividend and other ownership rights with
respect to such shares of Common Stock.
(f) TRANSFER. No option granted hereunder shall be transferable by
the Optionee other than by will or by the laws of descent and distribution, and
such option may be exercised during the Optionee's lifetime only by the
Optionee, or his or her guardian or legal representative. Notwithstanding the
foregoing, the Committee may provide in an option agreement that the optionee
may transfer, without consideration for the transfer, his Nonqualified Options
to members of his immediate family, to trusts for the benefit of such family
members and to partnerships in which such family members are the only partners.
6. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE
(a) Any option granted under the Plan may be exercised by the
Optionee in whole or, subject to Section 5(b) hereof, in part by delivering to
the Company on any business day a written notice specifying the number of shares
of Common Stock the Optionee then desires to purchase (the "Notice"). As a
condition precedent to the exercise of any option, the Optionee shall pay or
make arrangements for the payment of all taxes to be withheld, in accordance
with Section 9 of the Plan.
(b) Payment for the shares of Common Stock purchased pursuant to the
exercise of an option shall be made either: (i) in cash, or by certified or bank
check or other payment acceptable to the Company, equal to the option exercise
price for the number of shares specified in the Notice (the "Total Option
Price"); (ii) if authorized by the applicable option agreement and if permitted
by law, by delivery of shares of Common Stock that the Optionee has beneficially
owned for more
<PAGE> 10
than six months and which the Optionee may freely transfer having a fair market
value, determined by reference to the provisions of Section 5(d) hereof, equal
to or less than the Total Option Price, plus cash in an amount equal to the
excess, if any, of the Total Option Price over the fair market value of such
shares of Common Stock; or (iii) by the Optionee delivering the Notice to the
Company together with irrevocable instructions to a broker to promptly deliver
the Total Option Price to the Company in cash or by other method of payment
acceptable to the Company; provided, however, that the Optionee and the broker
shall comply with such procedures and enter into such agreements of indemnity or
other agreements as the Company shall prescribe as a condition of payment under
this clause (iii).
(c) The delivery of certificates representing shares of Common Stock
to be purchased pursuant to the exercise of an option will be contingent upon
the Company's receipt of the Total Option Price and of any written
representations from the Optionee required by the Committee, and the fulfillment
of any other requirements contained in the option agreement or applicable
provisions of law.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) If the shares of the Company's Common Stock as a whole are
increased, decreased, changed into or exchanged for a different number or kind
of shares or securities of the Company, whether through merger, consolidation,
reorganization, recapitalization, reclassification, stock dividend, stock split,
combination of shares, exchange of shares, change in corporate structure or the
like, an appropriate and proportionate adjustment shall be made in the number
and kind of shares subject to the Plan, and in the number, kind, and per share
exercise price of shares subject to unexercised options or portions thereof
granted prior to any such change. In the event of any
<PAGE> 11
such adjustment in an outstanding option, the Optionee thereafter shall have the
right to purchase the number of shares under such option at the per share price,
as so adjusted, which the Optionee could purchase at the total purchase price
applicable to the option immediately prior to such adjustment.
(b) Adjustments under this Section 7 shall be determined by the
Committee and such determinations shall be conclusive. The Committee shall have
the discretion and power in any such event to determine and to make effective
provision for acceleration of the time or times at which any option or portion
thereof shall become exercisable. No fractional shares of Common Stock shall be
issued under the Plan on account of any adjustment specified above.
8. EFFECT OF CERTAIN TRANSACTIONS
In the case of (i) the dissolution or liquidation of the Company, (ii) a
reorganization, merger, consolidation or other business combination in which the
Company is acquired by another entity (other than a holding company formed by
the Company) or in which the Company is not the surviving entity, or (iii) the
sale of all or substantially all of the assets of the Company to another entity,
the Plan and the options issued hereunder shall terminate upon the effectiveness
of any such transaction or event, unless provision is made in connection with
such transaction for the assumption of options theretofore granted, or the
substitution for such option of new options of the successor entity or parent
thereof, with appropriate adjustment as to the number and kind of shares and the
per share exercise prices, as provided in Section 7. In the event of such
termination, (A) all outstanding options which are then currently exercisable
for shares of Common Stock and (B) such percentage between twenty-five percent
(25%) and one hundred percent (100%) of any outstanding options that are not
then currently exercisable for shares of Common Stock as shall
<PAGE> 12
have been determined by the Committee at the time of grant of the applicable
options shall be exercisable for at least fifteen (15) days prior to the date of
such termination whether or not otherwise exercisable during such period;
provided, however, that in the absence of any express determination by the
Committee as to the percentage of any options that shall be accelerated under
clause (B) above, the percentage shall be twenty-five percent (25%).
9. TAX WITHHOLDING
(a) Each Optionee shall, no later than the exercise date of any
option, pay to the Company, or make arrangements satisfactory to the Committee
regarding payment of any Federal, state, or local taxes of any kind required by
law to be withheld with respect to such income. The Company and its Subsidiaries
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the Optionee.
(b) An Optionee may elect to have his tax withholding obligation
satisfied, in whole or in part, by (i) authorizing the Company to withhold from
shares of Common Stock to be issued pursuant to any option number of shares with
an aggregate fair market value (determined by reference to the provisions of
Section 5(d) hereof), that would satisfy the withholding amount due, or (ii)
transferring to the Company shares of Common Stock owned by the Optionee with an
aggregate fair market value (determined by reference to the provisions of
Section 5(d) hereof) that would satisfy the withholding amount due.
10. CONDITION TO GRANTS OF COMMON STOCK
In addition to the terms and conditions expressly contemplated by the
Plan, the Committee may impose such other terms and conditions on the grant of
any Common Stock under the Plan as
<PAGE> 13
it may determine.
11. AMENDMENT OF THE PLAN
The Board of Directors may discontinue the Plan or amend the Plan at any
time, and from time to time. Plan amendments shall be subject to approval by the
Company stockholders if and to the extent determined by the Committee to be
necessary to ensure that Incentive Options granted under the Plan are qualified
under Section 422 of the Code.
Except as provided in Sections 7 and 8 hereof, rights and obligations
under any option granted before any amendment of the Plan shall not be altered
or impaired by such amendment, except with the consent of the Optionee.
<PAGE> 14
12. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board of Directors nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board of Directors to
adopt such other incentive arrangements as it may deem desirable, including,
without limitation, the granting of stock or stock options otherwise than under
the Plan, and such arrangements may be either applicable generally or only in
specific cases. Neither the Plan nor any option granted hereunder shall be
deemed to confer upon any employee any right to continued employment with the
Company or its Subsidiaries.
13. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
(a) The obligation of the Company to sell and deliver shares of
Common Stock with respect to options granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
(b) The Plan shall be governed by Delaware law, except to the extent
that such law is preempted by federal law.
<PAGE> 15
14. EFFECTIVE DATE OF PLAN RESTATEMENT; STOCKHOLDER APPROVAL
This Plan shall become effective upon the date that it is approved by
the Board of Directors of the Company; provided, however, that the Plan shall be
subject to the approval of the Company's stockholders in accordance with
applicable laws and regulations at an annual or special meeting held within
twelve months of such effective date. No options granted under the Plan prior to
such stockholder approval may be exercised until such approval has been
obtained. No Incentive Options may be granted under the Plan after the tenth
anniversary of the effective date of the Plan.
<PAGE> 1
EXHIBIT 4.4
AMENDED AND RESTATED
RESTRAC, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
The purpose of the Restrac, Inc. 1996 Employee Stock Purchase Plan ("the
Plan") is to provide eligible employees of Restrac, Inc. (the "Company") and
certain of its subsidiaries with opportunities to purchase shares of the
Company's common stock, $.01 par value (the "Common Stock"). Four Hundred
Thousand (400,000) shares of Common Stock in the aggregate have been approved
for this purpose. The Plan is intended to constitute an "employee stock purchase
plan" within the meaning of Section 423(b) of the Internal Revenue Code of 1986,
as amended (the "Code"), and shall be interpreted in accordance with that
intent.
1. ADMINISTRATION. The Plan will be administered by the Company's
Board of Directors (the "Board") or by a committee appointed by the Board for
such purpose (the "Committee"). The Board or the Committee has authority to make
rules and regulations for the administration of the Plan, and its
interpretations and decisions with regard thereto shall be final and conclusive.
No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any option granted
hereunder.
2. OFFERINGS. The Company will make one or more offerings to
eligible employees to purchase Common Stock under the Plan ("Offerings"). The
initial Offering will begin on the effective date of the IPO and will end on
September 30, 1996 (the "Initial Offering"). Thereafter, an Offering will begin
on the first business day occurring on or after each October 1 and April 1 and
will end on the last business day occurring on or before the following March 31
and
<PAGE> 2
September 30, respectively.
3. ELIGIBILITY. All employees of the Company (including employees
who are also directors of the Company) and all employees of each Designated
Subsidiary (as defined in Section 11) are eligible to participate in any one or
more of the Offerings under the Plan, provided that as of the first day of the
applicable Offering (the "Offering Date") they are customarily employed by the
Company or a Designated Subsidiary for more than twenty (20) hours a week and
have completed at least six (6) months of employment.
4. PARTICIPATION. An employee eligible on any Offering Date may
participate in such Offering by submitting an enrollment form to his appropriate
payroll location at least ten (10) business days before the Offering Date (or by
such other deadline as shall be established for the Offering). The form will (a)
state the percentage to be deducted from his Compensation (as defined in Section
11) per pay period, (b) authorize the purchase of Common Stock for him in each
Offering in accordance with the terms of the Plan and (c) specify the exact name
or names in which shares of Common Stock purchased for him are to be issued
pursuant to Section 10. An employee who does not enroll in accordance with these
procedures will be deemed to have waived his right to participate. Unless an
employee files a new enrollment form or withdraws from the Plan, his deductions
and purchases will continue at the same percentage of Compensation for future
Offerings, provided he remains eligible. Notwithstanding the foregoing,
participation in the Plan will neither be permitted nor be denied contrary to
the requirements of the Code.
5. EMPLOYEE CONTRIBUTIONS. Each eligible employee may authorize
payroll deductions at a minimum of one percent (1%) up to a maximum of ten
percent (10%) of his Compensation for each pay period. The Company will maintain
book accounts showing the
<PAGE> 3
amount of payroll deductions made by each participating employee for each
Offering. No interest will accrue or be paid on payroll deductions.
6. DEDUCTION CHANGES. An employee may not increase or decrease his
payroll deduction during any Offering, but may increase or decrease his payroll
deduction with respect to the next Offering (subject to the limitations of
Section 5) by filing a new enrollment form at least ten (10) business days
before the next Offering Date (or by such other deadline as shall be established
for the Offering).
7. WITHDRAWAL. An employee may withdraw from participation in the
Plan by delivering a written notice of withdrawal to his appropriate payroll
location. The employee's withdrawal will be effective as of the next business
day. Following an employee's withdrawal, the Company will promptly refund to him
his entire account balance under the Plan (after payment for any Common Stock
purchased before the effective date of withdrawal). Partial withdrawals are not
permitted. The employee may not begin participation again during the remainder
of the Offering, but may enroll in a subsequent Offering in accordance with
Section 4.
8. GRANT OF OPTIONS. On each Offering Date, the Company will grant
to each eligible employee who is then a participant in the Plan an option
("Option") to purchase on the last day of such Offering (the "Exercise Date"),
at the Option Price hereinafter provided for, up to 2500 whole shares of Common
Stock reserved for the purposes of the Plan. The purchase price for each share
purchased under such Option (the "Option Price") will be 85% of the Fair Market
Value of the Common Stock on the Offering Date or the Exercise Date, whichever
is less.
Notwithstanding the foregoing, no employee may be granted an option
hereunder if such employee, immediately after the option was granted, would be
treated as owning stock possessing
<PAGE> 4
five percent (5%) or more of the total combined voting power or value of all
classes of stock of the Company or any Parent or Subsidiary (as defined in
Section 11). For purposes of the preceding sentence, the attribution rules of
Section 424(d) of the Code shall apply in determining the stock ownership of an
employee, and all stock which the employee has a contractual right to purchase
shall be treated as stock owned by the employee. In addition, no employee may be
granted an Option which permits his rights to purchase stock under the Plan, and
any other employee stock purchase plan of the Company and its Parents and
Subsidiaries, to accrue at a rate which exceeds $25,000 of the fair market value
of such stock (determined on the option grant date or dates) for each calendar
year in which the Option is outstanding at any time. The purpose of the
limitation in the preceding sentence is to comply with Section 423(b)(8) of the
Code.
9. EXERCISE OF OPTION AND PURCHASE OF SHARES. Each employee who
continues to be a participant in the Plan on the Exercise Date shall be deemed
to have exercised his Option on such date and shall acquire from the Company
such number of whole shares of Common Stock reserved for the purpose of the Plan
as his accumulated payroll deductions on such date will purchase at the Option
Price, subject to any other limitations contained in the Plan. Any balance
remaining in an employee's account at the end of an Offering will be refunded to
the employee promptly; provided that any balance remaining in an employee's
account at the end of an Offering solely by reason of the inability to purchase
a fractional share will be carried forward to the next Offering.
10. ISSUANCE OF CERTIFICATES. Certificates representing shares of
Common Stock purchased under the Plan may be issued only in the name of the
employee, in the name of the employee and another person of legal age as joint
tenants with rights of survivorship, or in the
<PAGE> 5
name of a broker authorized by the employee to be his, or their, nominee for
such purpose.
11. DEFINITIONS.
The term "Compensation" means the amount of total cash compensation,
prior to salary reduction pursuant to either Section 125 or 401(k) of the Code,
including base pay, commissions, overtime, and incentive and bonus awards, but
excluding allowances and reimbursements for expenses such as relocation
allowances or travel expenses, income or gains on the exercise of Company stock
options, and similar items.
The term "Designated Subsidiary" means any present or future Subsidiary
(as defined below) that is designated from time to time by the Board or the
Committee to participate in the Plan. Subsidiaries may be so designated either
before or after the Plan is approved by the stockholders.
The term "Fair Market Value of the Common Stock" means the last reported
sale price of the Common Stock on the Nasdaq National Market ("NASDAQ") on a
given day or, if no sales of Common Stock were made on that day, the last
reported sale price of the Common Stock on the next preceding day on which sales
were made.
The term "Parent" means a "parent corporation" with respect to the
Company, as defined in Section 424(e) of the Code.
The term "Subsidiary" means a "subsidiary corporation" with respect to
the Company, as defined in Section 424(f) of the Code.
12. RIGHTS ON RETIREMENT, DEATH, OR OTHER TERMINATION OF EMPLOYMENT.
If a participating employee's employment terminates for any reason before the
Exercise Date for any Offering, no payroll deduction will be taken from any pay
due and owing to the employee and the
<PAGE> 6
balance in his account will be paid to him or, in the case of his death, to his
designated beneficiary as if he had withdrawn from the Plan under Section 7. An
employee will be deemed to have terminated employment, for this purpose, if the
corporation that employs him, having been a Designated Subsidiary, ceases to be
a Subsidiary, or if the employee is transferred to any corporation other than
the Company or a Designated Subsidiary.
13. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an Option to
an employee nor the deductions from his pay shall constitute such employee a
stockholder of the shares of Common Stock covered by an Option under the Plan
until such shares have been purchased by and issued to him.
14. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not
transferable by a participating employee other than by will or the laws of
descent and distribution, and are exercisable during the employee's lifetime
only by the employee.
15. APPLICATION OF FUNDS. All funds received or held by the Company
under the Plan may be combined with other corporate funds and may be used for
any corporate purpose.
16. ADJUSTMENT IN CASE OF CHANGES AFFECTING COMMON STOCK. In the
event of a subdivision of outstanding shares of Common Stock, or the payment of
a dividend in Common Stock, the number of shares approved for the Plan, and the
share limitation set forth in Section 8, shall be increased proportionately, and
such other adjustment shall be made as may be deemed equitable by the Board or
the Committee. In the event of any other change affecting the Common Stock, such
adjustment shall be made as may be deemed equitable by the Board or the
Committee to give proper effect to such event.
<PAGE> 7
17. AMENDMENT OF THE PLAN. The Board or the Committee may at any
time, and from time to time, amend the Plan in any respect, except that without
the approval, within twelve (12) months of such Board or Committee action, by
the holders of a majority of the shares of stock of the Company present or
represented and entitled to vote at a meeting of stockholders, no amendment
shall be made (a) increasing the number of shares approved for the Plan or (b)
redefining the class of corporations whose employees are eligible to receive
Options under the Plan.
18. INSUFFICIENT SHARES. If the total number of shares of Common
Stock that would otherwise be purchased on any Exercise Date plus the number of
shares purchased under previous Offerings under the Plan exceeds the maximum
number of shares issuable under the Plan, the shares then available shall be
apportioned among participants in proportion to the amount of payroll deductions
accumulated on behalf of each participant that would otherwise be used to
purchase Common Stock on such Exercise Date.
19. TERMINATION OF THE PLAN. The Plan may be terminated at any time
by the Board or the Committee. Upon termination of the Plan, all amounts in the
accounts of participating employees shall be promptly refunded.
20. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and
deliver Common Stock under the Plan is subject to listing on NASDAQ (or other
national exchange) and obtaining all governmental approvals required in
connection with the authorization, issuance, or sale of such stock.
The Plan shall be governed by Delaware law except to the extent that
such law is preempted by federal law.
<PAGE> 8
21. ISSUANCE OF SHARES. Shares may be issued upon exercise of an
Option from authorized but unissued Common Stock, from shares held in the
treasury of the Company, or from any other proper source.
22. TAX WITHHOLDING. Participation in the Plan is subject to any
required tax withholding on income of the participant in connection with the
Plan. Each employee agrees, by entering the Plan, that the Company and its
Subsidiaries shall have the right to deduct any such taxes from any payment of
any kind otherwise due to the employee, including shares issuable under the
Plan.
23. NOTIFICATION UPON SALE OF SHARES. Each employee agrees, by
entering the Plan, to give the Company prompt notice of any disposition of
shares purchased under the Plan where such disposition occurs within two years
after the date of grant of the Option pursuant to which such shares were
purchased.
24. EFFECTIVE DATE AND APPROVAL OF SHAREHOLDERS. The Plan shall take
effect on the first day of the Company's initial public offering, subject to
approval by the holders of a majority of the shares of stock of the Company
present or represented and entitled to vote at a meeting of stockholders, which
approval must occur within twelve (12) months of the adoption of the Plan by the
Board.
<PAGE> 1
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 523-1231
March 2, 1998
Restrac, Inc.
91 Hartwell Avenue
Lexington, Massachusetts 02173
Re: RESTRAC, INC. AMENDED AND RESTATED 1996 STOCK OPTION AND GRANT PLAN
AND AMENDED AND RESTATED 1996 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
This opinion is furnished in connection with the registration, pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), of 1,000,000
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of Restrac, Inc., a Delaware corporation (the "Company").
In connection with rendering this opinion, we have examined the Third
Amended and Restated Certificate of Incorporation of the Company, the Amended
and Restated By-Laws of the Company, such records of the corporate proceedings
of the Company as we deemed material, a registration statement on Form S-8 under
the Securities Act relating to the Shares (the "Registration Statement") and the
Company's Amended and Restated 1996 Stock Option and Grant Plan and its Amended
and Restated 1996 Employee Stock Purchase Plan (collectively, the "Plans").
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America, the Commonwealth of Massachusetts and the
Delaware General Corporation Law.
Based upon the foregoing, we are of the opinion that when the Shares have
been issued and paid for in accordance with the terms of the Plans and the
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable shares of the Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated October
23, 1997 included in Restrac, Inc.'s Form 10K for the year ended September 30,
1997.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
March 2, 1998
