As filed with the Securities and Exchange Commission on September 19, 1997
Registration No. 333-25407
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO.2
TO
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
INDUSTRI-MATEMATIK INTERNATIONAL CORP.
(Exact name of registrant as specified in its charter)
Delaware No. 51-0374596
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Kungsgatan 12-14
Box 7733
103 95 Stockholm
Sweden
(011) (468) 676-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
Industri-Matematik International Corp. 1997 Employee Stock Purchase Plan
(Full title of plan)
----------------
Marvin S. Robinson, Esq.
Tannenbaum Dubin & Robinson, LLP
1140 Avenue of the Americas
New York, New York 10036
(212) 302-2900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
("Commission") are incorporated by reference in this Registration Statement:
(a) The Company's Registration Statement on Form S-1 (File No. 333-5495)
and the amendments thereto, including the Prospectus dated September 25,
1996, filed for the purpose of registering certain shares of the Company's
Common Stock under the Securities Act of 1933, as amended ("Securities Act")
in connection with the Company's initial public offering.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
July 31, 1997.
(c) Item 1, "Description of Registrant's Securities to be Registered,"
contained in the Company's Registration Statement on Form 8-A, filed on
September 13, 1996, pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended ("Exchange Act").
(d) All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered herein
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interest of Named Experts and Counsel
Counsel to the Company, Tannenbaum Dubin & Robinson, LLP, 1140 Avenue of
the Americas, New York, New York 10036, has rendered an opinion to the effect
that the Common Stock offered hereby, when issued in accordance with the
Company's 1997 Employee Stock Purchase Plan, will be legally and validly
issued, fully paid, and non-assessable. As of September 12, 1997, certain
members of Tannenbaum Dubin & Robinson, LLP owned an aggregate of 6,950 shares
of the Company's Common Stock having a market value, as of September 12, 1997,
of $158,112.
Item 6. Indemnification of Directors and Officers
(a) Section 145 of the Delaware General Corporation Law ("GCL") gives Delaware
corporations the power to indemnify each of their present and former officers
or directors under certain circumstances if such person acted in good faith
and in a manner which he reasonably believed to be in, or not opposed to, the
best interest of the corporation.
(b) The Amended and Restated Certificate of Incorporation of the Company
contains provisions that eliminate the personal liability of each director to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (i) for breaches of such director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the GCL, or (iv) for any transaction from which
such director derived an improper personal benefit.
(c) The Amended and Restated Certificate of Incorporation of the Company
contains provisions to the general effect that each director and officer
shall be indemnified by the Company against liabilities and expenses in
connection with any threatened, pending, or contemplated legal proceedings
to which he may be made a party or with which he may become involved by reason
of being or having been an officer or director of the Company or of any other
organization at the request of the Company. Indemnification is available only
if it is determined to be proper by a majority of disinterested directors
constituting a quorum, by the stockholders, or by independent legal counsel
in a written opinion. In order to be entitled to indemnification, the
indemnified person must have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company, and,
with respect to any criminal action or proceedings, had no reasonable cause
to believe his conduct was unlawful. In the case of an action by or in the
right of the Company, indemnification is precluded if such person has been
adjudged to be liable unless, and only to the extent that, the Court of
Chancery of the State of Delaware or the court in which the action was brought
shall determine that indemnification is proper. The Company also has the power
to obtain insurance indemnifying officers and directors of the Company against
any liability which it may deem proper, whether or not the Company would
otherwise have the power to indemnify such officer or director pursuant to its
Amended and Restated Certificate of Incorporation.
The Company maintains, on behalf of its directors and officers, insurance
protection against certain liabilities arising out of the discharge of their
duties and also insurance covering the Company against indemnification
payments to its directors and officers for certain liabilities.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit No. Description of Exhibit
----------------- ------------------------------------------------
Exhibit 4.1* Form of Amended and Restated Certificate of
Incorporation of the Company.
Exhibit 4.2* Form of Restated By-Laws of the Company.
Exhibit 4.3* Stock Option Plan of the Company.
Exhibit 4.4* Forms of Agreements of Restricted Stock Program
of the Company.
Exhibit 4.5 1997 Employee Stock Purchase Plan of the Company.
Exhibit 5.1** Opinion of Tannenbaum Dubin & Robinson, LLP
Exhibit 23.1** Consent of Tannenbaum Dubin & Robinson, LLP.
Exhibit 23.2** Consent of Ohrlings Coopers & Lybrand AB.
Exhibit 24.1** Power of Attorney.
*Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 333-5495).
**Previously filed
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 Amendment No. 2 to
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Amendment No. 2 to
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 Amendment No. 2 to Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Amendment No. 2 to Registration Statement or any material
change to such information in the Amendment No. 2 to
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Amendment No. 2 to Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in
this Amendment No. 1 to Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer, or controlling
person of the Company 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 Company, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
will submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company,
Industri-Matematik International Corp., 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 Amendment No. 2 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, on this
16th day of September, 1997.
INDUSTRI-MATEMATIK INTERNATIONAL CORP.
By: /s/ STIG G. DURLOW
---------------------------------
Stig G. Durlow
Chairman, President, and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- ---------- ----- ----
/S/ STIG G. DURLOW Chairman of the Board of September 16, 1997
- ----------------------- Directors, President, and Chief
Stig. G. Durlow Executive Officer (Principal
Executive Officer)
* Senior Vice President, Chief
Financial Officer, and September 16, 1997
- ----------------------- Secretary (Principal Financial
Lars-Goran Peterson and Accounting Officer)
* Director September 16, 1997
- -----------------------
Martin Leimdorfer
Director September 16, 1997
- -----------------------
Geoffrey W. Squire
Director September 16, 1997
- -----------------------
William H. Janeway
* Director September 16, 1997
- -----------------------
Jeffrey A. Harris
* By: /S/ STIG G. DURLOW
-------------------
Stig G. Durlow
(as attorney-in-fact)
<PAGE>
Exhibit Index
-------------
<TABLE>
<CAPTION>
Sequential
Exhibit Numbered
Number Description Page
- -------- ----------- ----
<C> <S> <C>
4.1* Form of Amended and Restated
Certificate of Incorporation of the
Company.
4.2* Form of Restated By-Laws of the
Company.
4.3* Stock Option Plan of the Company.
4.4* Form of Agreements of Restricted Stock
Program of the Company.
4.5 1997 Employee Stock Purchase Plan of the Company.
5.1** Opinion of Tannenbaum Dubin & Robinson, LLP.
23.1** Consent of Tannenbaum Dubin & Robinson, LLP
23.2** Consent of Ohrlings Coopers & Lybrand AB.
24.1** Power of Attorney.
*Incorporated by reference to the Company's Registration Statement on
Form S-1 (File No. 333-5495).
** Previously filed.
</TABLE>
INDUSTRI-MATEMATIK INTERNATIONAL CORP.
1997 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
Purpose
The purpose of the Industri-Matematik International Corp. 1997 Employee
Stock Purchase Plan is to provide employees of Industri-Matematik
International Corp. and its subsidiaries with an opportunity to purchase
Industri-Matematik International Corp. Common Stock pursuant to an "employee
stock purchase plan" meeting the requirements set forth in Section 423 of the
Internal Revenue Code of 1986.
ARTICLE II
Definitions
2.1. The following capitalized terms used in this Employee Stock
Purchase Plan shall have the meanings set forth in this Section 2.1.
Accrual Period shall mean a period of six months, commencing on
January 1 and July 1 of each year, and terminating on the next following
June 30 or December 31, respectively, provided that the first Accrual Period
shall commence on the Effective Date and shall end on June 30, 1997.
Board shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations promulgated thereunder.
Common Stock shall mean the Common Stock, $.01 par value, of the
Company.
Company shall mean Industri-Matematik International Corp., a Delaware
corporation.
Compensation shall mean an Employee's total compensation paid by the
Company or one or more Designated Subsidiaries, including such amounts as are
deferred by the Employee (a) under a qualified cash or deferred arrangement
described in Section 401(k) of the Code or (b) pursuant to a plan qualified
under Section 125 of the Code.
Corporate Transaction shall mean any of the following shareholder
approved transactions to which the Company is a party: (a) a merger or
consolidation in which the Company is not the surviving entity, except for a
transaction the principal purpose of which is to change the state in which the
Company is incorporated, (b) the sale, transfer, or other disposition of all
or substantially all of the assets of the Company (including the capital stock
of the Company's Subsidiaries) in connection with the complete liquidation or
dissolution of the Company, or (c) any reverse merger in which the Company is
the surviving entity but in which securities possessing more than 50% of the
total combined voting power of the Company's outstanding securities are
transferred to a person or persons other than those who held such securities
immediately prior to such merger.
Current Accrual Period shall mean any Accrual Period which ends in a
then current calendar year.
Designated Subsidiaries shall mean the Subsidiaries which have been
designated by the Plan Administrator from time to time as eligible to
participate in the Plan.
Effective Date shall mean February 26, 1997, provided that if a
Designated Subsidiary becomes a participating company in the Plan after such
date, the Plan Administrator shall designate a separate Effective Date with
respect to such Subsidiary's Employee Participants.
Employee shall mean any individual, including an officer or director,
who is an employee of the Company or a Designated Subsidiary, provided that
for purposes of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other leave of
absence approved by the individual's employer. Where the period of leave
exceeds 90 days and the individual's right to reemployment is not guaranteed
either by statute or by contract, the employment relationship will be deemed
to have terminated on the 91st day of such leave for purposes of determining
eligibility to participate in the Plan.
Enrollment Date shall mean the first day of each Purchase Period.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended
from time to time.
Exercise Date shall mean the last day of each Accrual Period.
Fair Market Value on a specified day shall mean the closing price for a
share of Common Stock for the last market trading day prior to the time of the
determination on the Nasdaq National Market (or if the Common Stock is listed
on another national stock exchange, on that stock exchange) or, if no closing
price was reported on that date, on the last trading date on which a closing
price was reported, as reported in The Wall Street Journal or such other
source as the Plan Administrator deems reliable.
Participant shall mean an Employee of the Company or Designated
Subsidiary who is participating in the Plan.
Plan shall mean this Industri-Matematik International Corp. 1997
Employee Stock Purchase Plan.
Plan Administrator shall mean the person or persons appointed by the
Board who is responsible for the administration of the Plan.
Purchase Period shall mean a purchase period established pursuant to
Article IV hereof.
Purchase Price shall mean an amount equal to 85% of the Fair Market
Value of a share of Common Stock on the Enrollment Date or on the Exercise
Date, whichever is lower.
Reserves shall mean the number of shares of Common Stock covered by each
option under the Plan which have not yet been exercised and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but not yet placed under option.
Rule 16b-3 shall mean Rule 16b-3 promulgated under the Exchange Act, as
amended from time to time.
Subsidiary shall mean a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
2.2. When used in this Plan, unless the context clearly indicates to
the contrary, the masculine gender shall include the feminine and neuter
genders and the singular shall include the plural, and if a defined term is
intended, it shall be capitalized.
ARTICLE III
Eligibility
3.1. Any individual who is an Employee on a given Enrollment Date shall
be eligible to participate in the Plan for the Purchase Period commencing with
such Enrollment Date. Members of the Board who are eligible Employees are
permitted to participate in the Plan except to the extent limited by Section
3.3.
3.2. Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (a) if, immediately after
the grant, such Employee (taking into account stock owned by any other person
whose Common Stock would be attributed to such Employee pursuant to Section
424(d) of the Code) would own Common Stock and/or hold outstanding options to
purchase Common Stock possessing 5% or more of the total combined voting power
or value of all classes of Common Stock of the Company or of a Subsidiary or
(b) which permits his rights to purchase shares of capital stock of the
Company under all employee stock purchase plans of the Company and its
Subsidiaries to accrue at a rate which exceeds $25,000 worth of capital stock
of the Company (determined at the Fair Market Value of the shares at the time
such option is granted) for each calendar year in which such option is
outstanding at any time.
3.3. Notwithstanding the provisions of Section 3.1, the following
Employees shall not be eligible to participate in the Plan for any relevant
Purchase Period: (a) Employees whose customary employment is 20 hours or less
per week, (b) Employees whose customary employment is for not more than 5
months in any calendar year, (c) Employees who were not employed at the start
of the latest Purchase Period, and (d) Employees who are subject to rules or
laws of a foreign jurisdiction that prohibit or make impractical the
participation of such Employees in the Plan.
ARTICLE IV
Purchase Periods
4.1. The Plan shall be implemented through overlapping or consecutive
Purchase Periods until such time as (a) the maximum number of shares of Common
Stock available for issuance under the Plan shall have been purchased or (b)
the Plan shall have been sooner terminated in accordance with Article XVIII.
The maximum duration of a Purchase Period shall be 27 months. Initially, the
Plan shall be implemented through overlapping Purchase Periods of 24 months
commencing each January 1 and July 1 following the Effective Date (except that
the initial Purchase Period shall commence on the Effective Date and shall end
on December 31, 1998). The Plan Administrator shall have the authority to
change the length of any Purchase Period, to change the length of Accrual
Periods within any Purchase Period subsequent to the initial Purchase Period,
and to determine whether subsequent Purchase Periods shall be consecutive or
overlapping by announcement at least 30 days prior to the commencement of the
Purchase Period.
4.2. A Participant shall be granted a separate option for each Purchase
Period in which he participates. Options shall be granted on the Enrollment
Date and shall be automatically exercised in successive installments on the
Exercise Dates within the Purchase Period.
4.3. An Employee may participate in only one Purchase Period at a time.
Accordingly, except as provided in Section 4.4, an Employee who wishes to join
a new Purchase Period must withdraw from the current Purchase Period in which
he is participating and enroll in the new Purchase Period prior to the
Enrollment Date for that Purchase Period, provided the Participant is eligible
to participate in the Plan on that date and has not elected to terminate
participation in the Plan.
4.4. If, on the first day of any Accrual Period in a Purchase Period in
which a Participant is participating, the Fair Market Value of the Common
Stock is less than the Fair Market Value of the Common Stock on the Enrollment
Date of the Purchase Period (after taking into account any adjustment during
the Purchase Period pursuant to Section 17.1), the Purchase Period shall be
terminated automatically and the Participant shall be enrolled automatically
in the new Purchase Period which has its first Accrual Period commencing on
that date, provided the Participant is eligible to participate in the Plan on
that date and has not elected to terminate participation in the Plan.
4.5. Except as specifically provided in the Plan, the acquisition of
Common Stock through participation in the Plan in any Purchase Period shall
neither limit nor require the acquisition of Common Stock by a Participant in
any subsequent Purchase Period.
ARTICLE V
Participation
5.1. An eligible Employee may become a Participant in the Plan by
completing a subscription agreement which either authorizes payroll deductions
or elects such other payment plan as may be established by the Plan
Administrator from time to time in a form authorized by the Plan Administrator
and filing it with the designated payroll office of the Company at least 10
business days prior to the Enrollment Date for the Purchase Period in which
such participation will commence, unless a later time for filing the
subscription agreement is set by the Plan Administrator for all eligible
Employees with respect to a given Purchase Period, provided that the time for
filing with respect to the initial Enrollment Date will be fixed by the Plan
Administrator.
5.2. Payroll deductions for a Participant, if applicable, shall
commence with the first payroll period following the Enrollment Date and shall
end on the last complete payroll period during the Purchase Period, unless
sooner terminated by the Participant as provided in Article VI, provided that
the commencement date for payroll deductions following the initial Enrollment
Date will be fixed by the Plan Administrator.
ARTICLE VI
Payroll Deductions or Other Participant Payments
6.1. At the time a Participant files his subscription agreement, he
shall elect to have payroll deductions made during the Purchase Period from
the Compensation which he receives during the Purchase Period, unless the Plan
Administrator has authorized, and the Participant has elected, another form of
payment.
6.2. All payroll deductions made for a Participant or other elected
forms of payment authorized by the Plan Administrator and made by a
Participant shall be credited to his account under the Plan. Payroll
deductions will be withheld in whole percentages only.
6.3. A Participant may discontinue his participation in the Plan as
provided in Sections 6.5 and 6.6 or may change the rate of his payroll
deductions or other form of payment authorized by the Plan Administrator
during the Purchase Period by completing and filing with the Company a new
subscription agreement authorizing such change. A change in payroll deduction
rate shall be effective with the first full payroll period commencing 10
business days after the Company's receipt of the new subscription agreement
unless the Company elects to process a given change more quickly. The Plan
Administrator shall be authorized to limit the number of payroll deduction
rate changes or changes in other forms of payment during any Purchase Period.
6.4. Notwithstanding the provisions of Section 6.3, to the extent
necessary to comply with Section 423(b)(8) of the Code and Section 3.2 herein,
a Participant's payroll deductions or other form of payment authorized by the
Plan Administrator may be decreased to 0% at such time during any Current
Accrual Period as the aggregate of all payroll deductions and payments which
were previously used to purchase Common Stock under the Plan in a prior
Accrual Period which ended during the calendar year of the Current Accrual
Period plus all payroll deductions and other payments accumulated with respect
to the Current Accrual Period equal $21,250. Payroll deductions and other
forms of payment authorized by the Plan Administrator shall recommence at the
rate provided in such Participant's subscription agreement at the beginning of
the first Accrual Period which is scheduled to end in the following calendar
year, unless the Participant elects another form of payment authorized by the
Plan Administrator or discontinues participation in the Plan.
6.5. A Participant may withdraw all but not less than all the payroll
deductions and other payments made which were credited to his account and not
yet used to exercise his option under the Plan at any time by giving written
notice to the Company in a form authorized by the Plan Administrator. All of
the Participant's payroll deductions and other payments credited to his
account will be paid to such Participant as promptly as practicable after
receipt of notice of withdrawal, such Participant's option for the Purchase
Period will be automatically terminated, and no further payroll deductions for
the purchase of shares will be made or payments accepted during the Purchase
Period. If a Participant withdraws from a Purchase Period, payroll deductions
and other forms of payment will not resume at the beginning of the succeeding
Purchase Period unless the Participant delivers to the Company a new
subscription agreement.
6.6. Upon a Participant's ceasing to be an Employee for any reason, the
payroll deductions and other payments credited to such Participant's account
during the Purchase Period but not yet used to exercise an option will be
returned to such Participant or, in the case of his death, to the person or
persons entitled thereto under Article XIII, and such Participant's option
will be automatically terminated.
ARTICLE VII
Grant of Option
On the Enrollment Date, each Participant in such Purchase Period shall
be granted an option to purchase on each Exercise Date during such Purchase
Period (at the applicable Purchase Price) up to a number of shares of the
Common Stock determined by dividing such Participant's payroll deductions or
other payments authorized by the Plan Administrator accumulated prior to such
Exercise Date and retained in the Participant's account as of the Exercise
Date by the applicable Purchase Price, provided that such purchase shall be
subject to the limitations set forth in Sections 3.2 and 11.1. Exercise of
the option shall occur as provided in Article VIII, unless the Participant has
withdrawn pursuant to Section 6.5, and the option, to the extent not
exercised, shall expire on the last day of the Purchase Period.
ARTICLE VIII
Exercise of Option
8.1. Unless a Participant withdraws from the Plan as provided in
Section 6.5 or his option is terminated as provided in Section 6.6, his option
for the purchase of shares will be exercised automatically on each Exercise
Date, and the maximum number of full shares subject to the option shall be
purchased for such Participant at the applicable Purchase Price with the
accumulated amounts in his account. No fractional shares will be purchased;
any amounts accumulated in a Participant's account which are not sufficient to
purchase a full share shall be carried over to the next Accrual Period or
Purchase Period, whichever applies, or returned to the Participant, if the
Participant withdraws from the Plan. During a Participant's lifetime, a
Participant's option to purchase shares hereunder is exercisable only by him.
8.2. The maximum number of shares of Common Stock a Participant shall
be permitted to purchase in any Accrual Period shall be 500, subject to
adjustment as provided in Article XVII.
ARTICLE IX
Delivery
Upon receipt of a request from a Participant after each Exercise Date on
which a purchase of shares occurs, the Company shall arrange the delivery to
such Participant, as promptly as practicable, of a certificate representing
the shares of Common Stock purchased upon exercise of his option.
ARTICLE X
Interest
No interest shall accrue on the payroll deductions or other amounts
credited to a Participant's account under the Plan.
ARTICLE XI
Stock
11.1. The maximum number of shares of Common Stock which shall be made
available for sale under the Plan shall be 600,000 shares, subject to
adjustment upon changes in capitalization of the Company as provided in
Article XVII. If on a given Exercise Date the number of shares of Common
Stock with respect to which options are to be exercised exceeds the number of
shares then available under the Plan, the Plan Administrator shall make a pro
rata allocation of the shares of Common Stock remaining available for purchase
in as uniform a manner as shall be practicable and as it shall determine to be
equitable.
11.2. A Participant will have no interest or voting right in shares of
Common Stock covered by his option until such shares of Common Stock are
actually purchased on the Participant's behalf in accordance with the
applicable provisions of the Plan. No adjustment shall be made for dividends,
distributions, or other rights for which the record date is prior to the date
of such purchase.
11.3. Shares of Common Stock to be delivered to a Participant under the
Plan will be registered in the name of the Participant or, if requested in
writing, in the name of the Participant and his spouse.
ARTICLE XII
Administration
12.1. The Plan shall be administered by one or more persons appointed by
the Board. The Plan Administrator appointed by the Board shall have full and
exclusive discretionary authority to construe, interpret, and apply the terms
of the Plan, to determine eligibility, and to adjudicate all disputed claims
filed under the Plan. Every finding, decision, and determination made by the
Plan Administrator appointed by the Board, to the full extent permitted by
law, shall be final and binding upon all persons.
12.2. Notwithstanding the provisions of Section 12.1, in the event that
Rule 16b-3 provides specific requirements for the administrators of plans of
this type, the Plan shall be administered only by such a body or person and in
such a manner as shall comply with the applicable requirements of Rule 16b-3.
ARTICLE XIII
Designation of Beneficiary
13.1. Each Participant will file a written designation of a beneficiary
who is to receive any shares of Common Stock and cash, if any, from the
Participant's account under the Plan in the event of such Participant's death.
If a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
13.2. Such beneficiary designation may be changed by the Participant (and
his spouse, if any) at any time by written notice. In the event of the death
of a Participant and in the absence of a beneficiary validly designated under
the Plan who is living at the time of such Participant's death, the Company
shall deliver such shares of Common Stock and/or cash to the executor or
administrator of the estate of the Participant, or if no such executor or
administrator has been appointed (to the knowledge of the Plan Administrator),
the Plan Administrator, in its discretion, may deliver such shares of Common
Stock and/or cash to the spouse or to any one or more dependents or relatives
of the Participant, or if no spouse, dependent, or relative is known to the
Plan Administrator, then to such other person as the Plan Administrator may
designate.
ARTICLE XIV
Transferability
Neither payroll deductions or other deposits credited to a Participant's
account nor any rights with regard to the exercise of an option or to receive
shares of Common Stock under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution, or as provided in Article XIII) by the Participant. Any such
attempt at assignment, transfer, pledge, or other disposition shall be without
effect, except that the Plan Administrator may treat such act as an election
to withdraw funds from a Purchase Period in accordance with Section 6.5.
ARTICLE XV
Use of Funds
All payroll deductions or other deposits received or held by the Company
under the Plan may be used by the Company for any corporate purpose, and the
Company shall not be obligated to segregate such payroll deductions or other
deposits.
ARTICLE XVI
Reports
Individual accounts will be maintained for each Participant in the Plan.
Statements of account will be given to Participants at least annually, which
statements will set forth the amounts of payroll deductions and other
deposits, the Purchase Price, the number of shares purchased, and the
remaining cash balance, if any.
ARTICLE XVII
Adjustments Upon Changes in Capitalization and Corporate Transactions
17.1. Subject to any required action by the shareholders of the Company,
the Reserves, as well as the Purchase Price, shall be proportionately adjusted
for any increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, stock dividend,
combination, or reclassification of the Common Stock, or any other similar
event resulting in an increase or decrease in the number of issued shares of
Common Stock. Such adjustment shall be made by the Plan Administrator, whose
determination in that respect shall be final, binding, and conclusive. Except
as expressly provided in this Section 17.1, no issue by the Company of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an
option. The Plan Administrator, if it so determines in the exercise of its
sole discretion, may make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each outstanding option, in the
event the Company effects one or more reorganizations, recapitalizations,
rights offerings, or other increases or reductions of shares of its
outstanding Common Stock.
17.2. In the event of a proposed Corporate Transaction, each option under
the Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Plan Administrator determines, in the exercise of his sole
discretion and in lieu of such assumption or substitution, to shorten the
Purchase Period then in progress by setting a new Exercise Date. If the Plan
Administrator shortens the Purchase Period then in progress in lieu of
assumption or substitution in the event of a Corporate Transaction, the Plan
Administrator shall notify each Participant in writing, at least 10 days prior
to the new Exercise Date, that the Exercise Date for his option has been
changed to the new Exercise Date and that his option will be exercised
automatically on the new Exercise Date unless prior to such date he has
withdrawn from the Purchase Period as provided in Section 6.5. For purposes
of this Section 17.2, an option granted under the Plan shall be deemed to be
assumed if, following the Corporate Transaction, the option confers the right
to purchase, for each share of Common Stock subject to the option immediately
prior to the Corporate Transaction, the consideration (whether stock, cash, or
other securities or property) received in the Corporate Transaction by holders
of Common Stock for each share of Common Stock held on the effective date of
the Corporate Transaction (and if such holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of Common Stock), provided that if such
consideration received in the Corporate Transaction was not solely common
stock of the successor corporation or its parent, the Plan Administrator, with
the consent of the successor corporation and the Participant, may provide for
the consideration to be received upon exercise of the option to be solely
common stock of the successor corporation or its parent equal in fair market
value to the per share consideration received by holders of Common Stock in
the Corporate Transaction.
ARTICLE XVIII
Amendment or Termination
18.1. The Plan Administrator, at any time and for any reason, may
terminate or amend the Plan. Except as provided in Article XVII, such
termination cannot affect options previously granted, provided that a Purchase
Period may be terminated by the Plan Administrator on any Exercise Date if the
Plan Administrator determines that the termination of the Plan is in the best
interests of the Company and its shareholders. Except as provided in Article
XVII, no amendment may make any change in any option theretofore granted which
adversely affects the rights of any Participant. To the extent necessary to
comply with Rule 16b-3 or Section 423 of the Code (or any successor rule or
provision or any other applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as required.
18.2. Without shareholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Plan Administrator shall be entitled to change the Purchase Periods, limit the
frequency and/or number of changes in the amount withheld during Purchase
Periods, make available or terminate alternative Participant payment options,
establish the exchange ratio applicable to amounts withheld in a currency
other than U.S. dollars, establish additional terms, conditions, rules, or
procedures to accommodate the rules or laws of applicable foreign
jurisdictions, permit payroll withholding in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation or otherwise paid by the Participant, and establish such other
limitations or procedures as the Plan Administrator in its sole discretion
determines advisable and which are consistent with the Plan.
ARTICLE XIX
Notices
All notices or other communications by a Participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Plan Administrator at the location,
or by the person, designated by the Plan Administrator for the receipt
thereof.
ARTICLE XX
Conditions Upon Issuance of Shares of Common Stock
Shares of Common Stock shall not be issued with respect to an option
unless the exercise of such option and the issuance and delivery of such
shares of Common Stock pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, and the Exchange Act and the rules and
regulations promulgated thereunder, and the requirements of any stock exchange
upon which the shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. As a
condition to the exercise of an option, the Company may require the
Participant to represent and warrant at the time of any such exercise that the
shares of Common Stock are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
ARTICLE XXI
Term of Plan
The Plan shall become effective upon the earlier to occur of its
adoption by the Board or its approval by the shareholders of the Company and
it shall continue in effect for a term of 10 years unless sooner terminated
under Article XVIII.
ARTICLE XXII
Additional Restrictions of Rule 16b-3
The terms and conditions of options granted under the Plan to, and the
purchase of shares by, persons subject to Section 16 of the Exchange Act shall
comply with the applicable provisions of Rule 16b-3. This Plan shall be
deemed to contain, and the shares of Common Stock issued upon exercise of an
option granted under the Plan shall be subject to, such additional conditions
and restrictions as may be required by Rule 16b-3 to qualify for the maximum
exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
ARTICLE XXIII
Shareholder Approval
Continuance of the Plan shall be subject to approval by the shareholders
of the Company within 12 months after the date the Plan is adopted by the
Board. If such shareholder approval is obtained at a duly held shareholders'
meeting, the Plan must be approved by a majority of the votes cast at such
shareholders' meeting at which a quorum representing a majority of all
outstanding voting stock of the Company, either in person or by proxy, is
present and voting on the Plan. However, approval at a meeting may be
obtained by a lesser degree of shareholder approval if the Plan Administrator,
in its discretion after consultation with the Company's legal counsel,
determines that such a lesser degree of shareholder approval will comply with
all applicable laws and will not adversely affect the qualification of the
Plan under Section 423 of the Code.
ARTICLE XXIV
No Employment Rights
The Plan does not, directly or indirectly, create any right for the
benefit of any Employee or class of Employees to purchase any shares of Common
Stock under the Plan, or create in any Employee or class of employees any
right with respect to continuation of employment by the Company or a
Designated Subsidiary, and it shall not be deemed to interfere in any way with
such employer's right to terminate, or otherwise modify, an Employee's
employment at any time.
ARTICLE XXV
Effect of Plan
The provisions of the Plan, in accordance with its terms, shall be
binding upon and inure to the benefit of each Participant and his
distributees, personal representatives, executors, and administrators, and any
receiver, trustee in bankruptcy, or representative of creditors of such
Participant.
ARTICLE XXVI
Information to Participants
The Company shall provide to each Participant, during the period for
which such Participant has an option outstanding, copies of all annual reports
and other information which is provided to all shareholders of the Company.
ARTICLE XXVII
Applicable Law
The laws of the state of Delaware will govern all matters relating to
this Plan except to the extent it is superseded by the laws of the United
States.
