As filed with the Securities and Exchange Commission
on September 17, 1996
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
THE MACNEAL-SCHWENDLER CORPORATION
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-2239450
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
815 Colorado Boulevard, Los Angeles, California 90041-1777
(Address of principal executive offices)
THE MACNEAL-SCHWENDLER CORPORATION 1996 EMPLOYEE
STOCK PURCHASE PLAN
(Full title of the plan)
______________
LOUIS A. GRECO
THE MACNEAL-SCHWENDLER CORPORATION
815 Colorado Boulevard
Los Angeles, California 90041-1777
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service:
(213) 258-9111
___________________
Copy to:
D. Stephen Antion, Esq.
O'Melveny & Myers LLP
400 South Hope Street, Suite 1500
Los Angeles, California 90071
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to be price offering registration
to be registered registered per unit price fee
_______________________________________________________________________
Common Stock, 750,000<F1> $6.69<F2> $5,017,500<F2> $1,730<F2>
$.01 par value shares
- -----------------------------------------------------------------------
<FN>
<F1> This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, options
and other rights to purchase or acquire the shares of
Common Stock covered by the Prospectus and, pursuant to
Rule 416, an additional indeterminate number of shares
which by reason of certain events specified in the Plan
may become subject to the Plan.
<F2> Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock on September 16, 1996 as reported
on the New York Stock Exchange and published in the
Western Edition of the Wall Street Journal.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to employees as specified
by Securities and Exchange Commission Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange
Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
These documents, which include the statement of availability
required by Item 2 of Form S-8, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3
of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of The MacNeal-Schwendler
Corporation (the "Company") filed with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended January 31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the
periods ending April 30, 1996 and July 31, 1996; and
(c) The description of the Company's Common Stock
contained in its Form 8-A dated May 22, 1996 and any
amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters
all securities then remaining unsold, are deemed to be
incorporated by reference into the prospectus and to be a part
hereof from the date of filing of such documents. Any
statement contained herein or in a document, all or a portion
of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be
deemed, except as so modified or amended, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware law provides for the indemnification of
officers and directors in terms sufficiently broad to include
indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under
the Securities Act of 1933. Pursuant to Section 145 of the
Delaware General Corporation Law, a corporation may indemnify
an officer or director if that person acted in good faith and
in a manner reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to
criminal actions or proceedings, had no reason to believe the
conduct was unlawful.
The Company has adopted provisions in its Bylaws which
limit the liability of its directors and officers to the
fullest extent permitted by Delaware law. The Company will
indemnify its directors and officers for claims against them
arising out of their duties as directors or officers of the
Company. Such indemnification includes any attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement and amounts expended in seeking
indemnification granted for such person under applicable law,
the Bylaws or any agreement with the Company reasonably
incurred by a director or officer, provided such director or
officer acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the
Company. The Company may also advance expenses (including
attorneys' fees) to its directors and officers relating to
such claims. The Company has purchased and maintains
insurance covering any liabilities asserted against and
incurred by its directors and officers acting in such
capacities, whether or not the Company would have the power or
obligation to indemnify such directors or officers under its
Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See the attached Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities
Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
Registration Statement; and
(iii) To include any material
information with respect to the plan of
distribution not previously disclosed in the
Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new regis-
tration 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; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
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 Los Angeles, State of California,
on this 17th day of September, 1996.
THE MACNEAL-SCHWENDLER CORPORATION
By: /s/ THOMAS C. CURRY
--------------------------------------
Thomas C. Curry
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ RICHARD H. MACNEAL Chairman of the Board September 17, 1996
- ----------------------
Richard H. MacNeal
/s/ THOMAS C. CURRY President, Chief Executive September 17, 1996
- --------------------- Officer and Director
Thomas C. Curry
/s/ LOUIS A. GRECO Chief Financial Officer September 17, 1996
- --------------------- (Principal Financial and
Louis A. Greco Accounting Officer)
/s/ PAUL B. MACCREADY Director September 17, 1996
- ----------------------
Paul B. MacCready
/s/ GEORGE N. RIORDAN Director September 17, 1996
- ----------------------
George N. Riordan
/s/ BERNARD J. BANNAN Director September 17, 1996
- -----------------------
Bernard J. Bannan
/s/ HAROLD HARRIGIAN Director September 17, 1996
- ------------------------
Harold Harrigian
/s/ DALE D. MYERS Director September 17, 1996
- -----------------------
Dale D. Myers
/s/ FRANK PERNA Director September 17, 1996
- -----------------------
Frank Perna
/s/ ARTHUR H. REIDEL Director September 17, 1996
- -----------------------
Arthur H. Reidel
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4 The MacNeal-Schwendler Corporation 1996 Employee Stock
Purchase Plan.
5 Opinion of O'Melveny & Myers LLP (opinion re legality).
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (included in Exhibit 5).
<PAGE>
EXHIBIT 4
THE MACNEAL-SCHWENDLER CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 1996
Employee Stock Purchase Plan of The MacNeal-Schwendler
Corporation.
1. Purpose. The purpose of the Plan is to provide
employees of the Company and its Designated Subsidiaries with
an opportunity to purchase Common Stock of the Company. It is
the intention of the Company to have the Plan qualify as an
"Employee Stock Purchase Plan" under Section 423 of the
Internal Revenue Code of 1986, as amended. The provisions of
the Plan shall, accordingly, be construed so as to extend and
limit participation in a manner consistent with the
requirements of that section of the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors
of the Company.
(b) "Code" shall mean the Internal Revenue Code
of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock
of the Company.
(d) "Company" shall mean The MacNeal-Schwendler
Corporation, a Delaware corporation.
(e) "Compensation" shall mean all regular
straight time gross earnings, payments for overtime, shift
premium, incentive compensation, incentive payments, bonuses,
commissions and other cash compensation.
(f) "Continuous Status as an Employee" shall
mean the absence of any interruption or termination of service
as an Employee. Continuous Status as an Employee shall not be
considered interrupted in the case of a leave of absence
agreed to in writing by the Company, provided that such leave
is for a period of not more than 90 days or reemployment upon
the expiration of such leave is guaranteed by contract or
statute.
(g) "Contributions" shall mean all amounts
credited to the account of a participant pursuant to the Plan.
(h) "Designated Subsidiaries" shall mean the
Subsidiaries which have been designated by the Board from time
to time in its sole discretion as eligible to participate in
the Plan (including any Subsidiaries which have been so
designated after the date the Plan is approved by
stockholders).
(i) "Employee" shall mean any person, including
an officer, who is customarily employed for at least twenty
(20) hours per week and more than five (5) months in a
calendar year by the Company or one of its Designated
Subsidiaries.
(j) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(k) "Exercise Date" shall mean the last day of
each Offering Period of the Plan.
(l) "Offering Date" shall mean the first
business day of each Offering Period of the Plan.
(m) "Offering Period" shall mean a period of
six (6) months, subject to and except as otherwise provided in
Section 4.
(n) "Plan" shall mean this Employee Stock
Purchase Plan.
(o) "Subsidiary" shall mean any corporation,
domestic or foreign, in an unbroken line of corporations
(beginning with the Company) in which each corporation (other
than the last corporation) has stock possessing 50% or more of
the total combined voting power of all classes of stock in one
or more of the other corporations in the chain, whether or not
such corporation now exists or is hereafter organized or
acquired by the Company or a Subsidiary.
3. Eligibility.
(a) Any person who has been employed as an
Employee for three (3) months as of the Offering Date of a
given Offering Period shall be eligible to participate during
such Offering Period under the Plan, subject to the
requirements of Section 5(a) and the limitations imposed by
Section 423(b) of the Code.
(b) Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be granted an option under
the Plan (i) if, immediately after the grant, such Employee
(after applying the attribution rules contained in Section
424(d) of the Code) would own stock and/or hold outstanding
options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of
stock of the Company or of any Subsidiary, or (ii) if such
option would permit his or her rights to purchase stock under
all employee stock purchase plans (described in Section 423 of
the Code) of the Company and its Subsidiaries to accrue at a
rate which exceeds Twenty Five Thousand Dollars ($25,000) of
fair market value of such stock (determined at the time such
option is granted) for each calendar year in which such option
is outstanding at any time. For this purpose, a right to
purchase stock occurs when it first becomes exercisable during
the calendar year.
4. Offering Periods. The first Offering Period
shall commence on October 1, 1996 (or such other date as
the Board of Directors shall determine) and terminate on
July 31, 1997. All subsequent new Offering Periods shall
commence on or about February 1 and August 1 of each year (or
at such other time or times as may be determined by the Board
of Directors) and shall terminate on the next succeeding July
31 and January 31, respectively. The Plan shall continue
until terminated in accordance with Sections 19 or 23 hereof.
The Board of Directors of the Company shall have the power to
change the duration and/or the frequency of Offering Periods
with respect to future offerings without stockholder approval
if such change is announced at least ten (10) days prior to
the scheduled beginning of the first Offering Period to be
affected.
5. Participation.
(a) An eligible Employee may become a
participant in the Plan by completing a subscription agreement
on the form provided by the Company and filing it with the
Company's payroll office prior to the applicable Offering
Date, unless a different time for filing the subscription
agreement is set by the Board for all eligible Employees with
respect to a given Offering Period. The subscription
agreement shall set forth the percentage of the participant's
Compensation (which shall be not less than 1% and not more
than 10%) to be applied as Contributions pursuant to the Plan.
(b) Payroll deductions shall commence on the
first payroll following the Offering Date and shall end on the
last payroll paid on or prior to the Exercise Date of the
Offering Period to which the subscription agreement is
applicable, unless sooner terminated by the participant as
provided in Section 10.
6. Method of Payment of Contributions.
(a) The participant shall elect to have payroll
deductions made on each payday during the Offering Period in
an amount not less than one percent (1%) and not more than ten
percent (10%) of such participant's Compensation on each such
payday. The Company will maintain on its books or cause to be
maintained by a recordkeeper an account in the name of such
participant. All payroll deductions made by a participant
shall be credited to his or her account under the Plan. A
participant may not make any additional payments into such
account.
(b) A participant may discontinue his or her
participation in the Plan as provided in Section 10, or, on
one occasion only during the Offering Period, may decrease the
rate of his or her Contributions during the Offering Period by
completing and filing with the Company a new subscription
agreement. The change in rate shall be effective as of the
beginning of the fiscal quarter following the date of filing
of the new subscription agreement.
(c) Notwithstanding the foregoing, to the
extent necessary to comply with Section 423(b)(8) of the Code
and Section 3(b) herein, a participant's payroll deductions
may be decreased to 0% at such time during any Offering Period
which is scheduled to end during the current calendar year
that the aggregate of all payroll deductions accumulated with
respect to such Offering Period and any other Offering Period
ending within the same calendar year equal $22,500. Payroll
deductions shall re-commence at the rate provided in such
participant's subscription agreement at the beginning of the
first Offering Period which is scheduled to end in the
following calendar year, unless terminated by the participant
as provided in Section 10.
7. Grant of Option.
(a) On the Offering Date of each Offering
Period, each eligible Employee participating in such Offering
Period shall be granted an option to purchase on the Exercise
Date a number of shares of the Company's Common Stock
determined by dividing such Employee's Contributions
accumulated prior to such Exercise Date and retained in the
participant's account as of the Exercise Date by the lower of
(i) ninety percent (90%) of the fair market value of a share
of the Company's Common Stock on the Offering Date, or (ii)
ninety percent (90%) of the fair market value of a share of
the Company's Common Stock on the Exercise Date; provided,
however, that the maximum number of shares an Employee may
purchase during each Offering Period shall be determined at
the Offering Date by dividing $12,500 by the fair market value
of a share of the Company's Common Stock on the Offering Date,
and provided further that such purchase shall be subject to
the limitations set forth in Sections 3(b) and 12. The fair
market value of a share of the Company's Common Stock shall be
determined as provided in Section 7(b).
(b) The option price per share of the shares
offered in a given Offering Period shall be the lower of: (i)
90% of the fair market value of a share of the Common Stock of
the Company on the Offering Date; or (ii) 90% of the fair
market value of a share of the Common Stock of the Company on
the Exercise Date. The fair market value of the Company's
Common Stock on a given date shall be the closing price on The
New York Stock Exchange on such date (or, in the event that
the Common Stock is not traded on such date, on the
immediately preceding trading date), as reported in The Wall
Street Journal or, in the event the Common Stock is not listed
on The New York Stock Exchange, the fair market value shall be
the closing price of the Common Stock for such date (or, in
the event that the Common Stock is not traded on such date, on
the immediately preceding trading date), as reported by the
National Association of Securities Dealers Automated Quotation
("Nasdaq") or, if such price is not reported, the mean of the
bid and asked prices per share of the Common Stock as reported
by Nasdaq or, if such prices are not so reported, as
determined by the Board in its discretion.
8. Exercise of Option. Unless a participant
withdraws from the Plan as provided in paragraph 10, his or
her option for the purchase of shares will be exercised
automatically on the Exercise Date of the Offering Period,
without any further action on the optionee's part, and the
maximum number of full shares subject to option will be
purchased at the applicable option price with the accumulated
Contributions in his or her account. The shares purchased
upon exercise of an option hereunder shall be deemed to be
transferred to the participant on the Exercise Date. During
his or her lifetime, a participant's option to purchase shares
hereunder is exercisable only by him or her.
9. Delivery. As promptly as practicable after the
Exercise Date of each Offering Period, the Company shall
arrange the delivery to each participant, as appropriate, of
a certificate representing the shares purchased upon exercise
of his or her option. Only cash remaining to the credit of a
participant's account under the Plan after a purchase by him
or her of shares at the termination of each Offering Period
which is insufficient to purchase a whole share of Common
Stock of the Company shall be carried over in the
participant's account and applied to the option price for the
succeeding Offering Period.
10. Withdrawal; Termination of Employment; Reduction
in Service.
(a) A participant may withdraw all but not less
than all the Contributions credited to his or her account
under the Plan at any time prior to ten (10) days prior to the
Exercise Date of the Offering Period by giving written notice
to the Company. All of the participant's Contributions
credited to his or her account will be paid to him or her
within fifteen (15) days after receipt of his or her notice of
withdrawal and his or her option for the current period will
be automatically terminated. No further Contributions for the
purchase of shares will be made during the Offering Period.
(b) Upon termination of the participant's
Continuous Status as an Employee prior to the Exercise Date of
the Offering Period for any reason, including retirement or
death, the Contributions credited to his or her account will
be returned to him or her or, in the case of his or her death,
to the person or persons entitled thereto under Section 14,
and his or her option will be automatically terminated.
(c) In the event an Employee fails to remain in
Continuous Status as an Employee of the Company for at least
twenty (20) hours per week during the Offering Period in which
the employee is a participant, he or she will be deemed to
have elected to withdraw from the Plan and the Contributions
credited to his or her account will be returned to him or her
and his or her option terminated.
(d) A participant's withdrawal from an offering
will not have any effect upon his or her eligibility to
participate in a succeeding offering or in any similar plan
which may hereafter be adopted by the Company.
11. Interest. No interest shall accrue on the
Contributions of a participant in the Plan.
12. Stock.
(a) The maximum number of shares of the
Company's Common Stock which shall be made available for sale
under the Plan shall be 750,000 shares, subject to adjustment
upon changes in capitalization of the Company as provided in
Section 18. If the total number of shares which would
otherwise be subject to options granted pursuant to Section
7(a) on the Offering Date of an Offering Period exceeds the
number of shares then available under the Plan (after
deduction of all shares for which options have been exercised
or are then outstanding), the Company shall make a pro rata
allocation of the shares remaining available for option grant
in as uniform a manner as shall be practicable and as it shall
determine to be equitable. In such event, the Company shall
give written notice of such reduction of the number of shares
subject to the option to each Employee affected thereby and
shall similarly reduce the rate of Contributions, if
necessary.
(b) The participant will have no interest or
voting right in shares covered by his or her option until such
option has been exercised.
(c) Shares to be delivered to a participant
under the Plan will be registered in the name of the
participant or, if requested by the participant, in the name
of the participant and his or her spouse.
13. Administration. The Board, or a committee named
by the Board, shall supervise and administer the Plan and
shall have full power and discretion to adopt, amend and
rescind any rules deemed desirable and appropriate for the
administration of the Plan and not inconsistent with the Plan,
to construe and interpret the Plan, and to make all other
determinations necessary or advisable for the administration
of the Plan. The composition of the committee shall be in
accordance with the requirements to obtain or retain any
available exemption from the operation of Section 16(b) of the
Exchange Act.
14. Designation of Beneficiary.
(a) A participant may file a written
designation of a beneficiary who is to receive any shares and
cash, if any, from the participant's account under the Plan in
the event of such participant's death subsequent to the end of
the Offering Period but prior to delivery to him or her of
such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any
cash from the participant's account under the Plan in the
event of such participant's death prior to the Exercise Date
of the Offering Period. If a participant is married and the
designated beneficiary is not the spouse, spousal consent
shall be required for such designation to be effective in a
form prescribed by the Board.
(b) Such designation of beneficiary may be
changed by the participant (and his or her spouse, if any) at
any time by written notice to the Company. 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 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
Company), the Company, in its discretion, may deliver such
shares 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 Company, then to such
other person as the Company may designate.
15. Transferability. Neither Contributions credited
to a participant's account nor any options or rights with
regard to the exercise of options or to receive shares 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 Section 14) by the
participant. Any such attempt at assignment, transfer, pledge
or other disposition shall be without effect, except that the
Company may treat such act as an election to withdraw funds in
accordance with Section 10.
16. Use of Funds. All Contributions 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 Contributions.
17. Reports. Individual bookkeeping accounts will
be maintained for each participant in the Plan. Statements of
account will be given to participating Employees promptly
following the Exercise Date, which statements will set forth
the amount of Contributions, the per share purchase price, the
number of shares purchased and the remaining cash balance, if
any.
18. Adjustments Upon Changes in Capitalization.
(a) Adjustment. Subject to any required action
by the stockholders of the Company, the number of shares of
Common Stock covered by each option under the Plan which has
not yet been exercised and the number of shares of Common
Stock which have been authorized for issuance under the Plan
but have not yet been placed under option (collectively, the
"Reserves"), as well as the price per share of Common Stock
covered by each option under the Plan which has not yet been
exercised, 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 increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment
shall be made by the Board, whose determination in that
respect shall be final, binding and conclusive. Except as
expressly provided herein, 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.
(b) Corporate Transactions. In the event of
the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise
provided by the Board. In the event of a proposed sale of all
or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, 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 Board
determines, in the exercise of its sole discretion and in lieu
of such assumption or substitution, to shorten the Offering
Period then in progress by setting a new Exercise Date (the
"New Exercise Date"). If the Board shortens the Offering
Period then in progress in lieu of assumption or substitution
in the event of a merger or sale of assets, the Board shall
notify each participant in writing, at least ten (10) days
prior to the New Exercise Date, that the Exercise Date for his
or her option has been changed to the New Exercise Date and
that his or her option will be exercised automatically on the
New Exercise Date, unless prior to such date he or she has
withdrawn from the Offering Period as provided in Section 10.
For purposes of this paragraph, an option granted under the
Plan shall be deemed to be assumed if, following the sale of
assets or merger, the option confers the right to purchase,
for each share of option stock subject to the option
immediately prior to the sale of assets or merger, the
consideration (whether stock, cash or other securities or
property) received in the sale of assets or merger by holders
of Common Stock for each share of Common Stock held on the
effective date of the 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, however, that if such
consideration received in the sale of assets or merger was not
solely common stock of the successor corporation or its parent
(as defined in Section 424(e) of the Code), the Board may,
with the consent of the successor corporation and the
participant, 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
of the per share consideration received by holders of Common
Stock in the sale of assets or merger.
The Board may, if it so determines in the
exercise of its sole discretion, also make provision for
adjusting the Reserves, as well as the price per share of
Common Stock covered by each outstanding option, in the event
that the Company effects one or more reorganizations,
recapitalizations, rights offerings or other increases or
reductions of shares of its outstanding Common Stock, and in
the event of the Company being consolidated with or merged
into any other corporation.
19. Amendment or Termination.
(a) The Board of Directors of the Company may
at any time terminate or amend the Plan. Except as provided
in Section 18, no such termination shall affect options
previously granted, nor shall an amendment make any change in
an outstanding option which adversely affects the rights of
the optionee. In addition, to the extent necessary to comply
with Section 423 of the Code (or any successor rule or provision
or any applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as
so required.
(b) Without stockholder consent and without
regard to whether any participant rights may be considered to
have been adversely affected, the Board (or its committee)
shall be entitled to change the Offering Periods, limit the
frequency and/or number of changes in the amount withheld
during an Offering Period, establish the exchange ratio
applicable to amounts withheld in a currency other than U.S.
dollars, 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, and establish
such other limitations or procedures as the Board (or its
committee) determines in its sole discretion advisable which
are consistent with the Plan. In addition, the Board (or its
committee) shall have the right to designate from time to time
the Subsidiaries where employees may be eligible to
participate in the Plan and such designations shall not
constitute an amendment to the Plan requiring stockholder
approval in accordance with Treasury Regulations Section
1.423-2(c)(4).
20. Stockholder Approval. Continuance of the Plan
shall be subject to approval by the stockholders of the
Company within twelve (12) months before or after the Plan is
adopted by the Board. Such stockholder approval shall be
obtained in the manner and to the extent required under
applicable federal and state law.
21. 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 Company at the location, or by
the person, designated by the Company for that purpose.
22. Conditions Upon Issuance of Shares. Shares
shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the
Exchange Act, any applicable state securities laws, the rules
and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the shares may then be
listed.
As a condition to the exercise of an option, the
Company may require the person exercising such option to
represent and warrant at the time of any such exercise that
the shares 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.
23. Term of Plan; Effective Date. The Plan shall
become effective upon the earlier to occur of its adoption by
the Board of Directors or its approval by the stockholders of
the Company. It shall continue in effect for a term of ten
(10) years unless sooner terminated under Section 19.
24. Plan Construction. It is the intent of the Company that trans-
actions in and affecting options in the case of Participants who are or
may be subject to Section 16 of the Exchange Act satisfy any then
applicable requirements of Rule 16b-3 so that such persons
(unless they otherwise agree) will be entitled to the exemptive
relief of Rule 16b-3 in respect of those transactions and will
not be subjected to avoidable liability thereunder. Accordingly,
this Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof 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. If any
provision of this Plan or of any option would otherwise
frustrate or conflict with the intent expressed above, that
provision to the extent possible shall be interpreted as to avoid
such conflict. If the conflict remains irreconcilable, the Board
or the committee may disregard the provision if it concludes that
to do so furthers the interest of the Company and is consistent
with the purposes of this Plan as to such persons in the
circumstances.
<PAGE>
EXHIBIT 5
September
17th
1 9 9 6
530,620-018
The MacNeal-Schwendler Corporation
815 Colorado Boulevard
Los Angeles, CA 90041-1777
Ladies and Gentlemen:
This opinion is rendered in connection with the filing
by The MacNeal-Schwendler Corporation, a Delaware corporation
(the "Company"), of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as
amended, covering 750,000 shares of Common Stock, $.01 par
value (the "Shares"), of the Company to be issued pursuant to
The MacNeal-Schwendler Corporation 1996 Employee Stock
Purchase Plan (the "Plan").
We have examined such appropriate records of the
Company and other documents as we have deemed pertinent as a
basis for this opinion.
Based upon such examination and upon such matters of
fact and law as we have deemed relevant, we are of the opinion
that when the Shares are issued and paid for in accordance
with any appropriate action or authorization by the Board of
Directors of the Company as required or contemplated under the
Plan and with the provisions of the Plan and relevant
agreements duly authorized by and completed in accordance with
the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement.
Very truly yours,
/s/ O'MELVENY & MYERS LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Registration Statement on Form S-8 and related Prospectus
pertaining to The MacNeal-Schwendler Corporation 1996 Employee
Stock Purchase Plan of our report dated March 6, 1996, with respect
to the consolidated financial statements of The MacNeal-Schwendler
Corporation included in its Annual Report (Form 10-K) for the year
ended January 31, 1996 filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Los Angeles, California
September 16, 1996
