<PAGE> 1
As filed with the Securities and Exchange Commission on March 31, 1998.
File No. 333-__________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- -------------------------------------------------------------------------------
MAPICS, INC.
(Exact Name of Issuer as Specified in its Charter)
GEORGIA 04-2711580
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
5775-D GLENRIDGE DRIVE
ATLANTA, GEORGIA 30328
(404) 705-3000
(Address, including zip code, and telephone number of Principal Executive
Offices)
MAPICS, INC. 1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(F/K/A MARCAM CORPORATION 1991 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN)
MAPICS, INC. 1998 NON-EMPLOYEE DIRECTORS STOCK INCENTIVE PLAN
MAPICS, INC. 1998 LONG-TERM INCENTIVE PLAN
MAPICS, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(F/K/A MARCAM CORPORATION 1990 EMPLOYEE STOCK PURCHASE PLAN)
(Full Titles of the Plans)
<TABLE>
<S> <C>
RICHARD C. COOK COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER LAURA G. THATCHER
MAPICS, INC. ALSTON & BIRD LLP
5775-D GLENRIDGE DRIVE ONE ATLANTIC CENTER
ATLANTA, GEORGIA 30328 1201 WEST PEACHTREE STREET, NW
(404) 705-3000 ATLANTA, GEORGIA 30309-3424
(Name, address, including zip code, and telephone number, (404) 881-7546
including area code, of agent for service)
</TABLE>
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Unit (1) Offering Price (1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,260,000 (2) $16.6875 $21,026.250.00 $6,202.74
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
footnotes on following page
<PAGE> 2
(1) Determined in accordance with Rule 457(h), the registration fee calculation
is based on the average of the high and low prices of the Company's Common
Stock reported on the Nasdaq National Market on March 27, 1998.
(2) Amount to be registered includes:
(i) 100,000 shares to be issued pursuant to the exercise of options
granted to directors under the MAPICS, Inc. 1998 Non-Employee Director
Stock Option Plan.
(ii) 60,000 shares to be issued pursuant to the grant or exercise of
awards to directors under the MAPICS, Inc. 1998 Non-Employee Directors
Stock Incentive Plan.
(iii) 1,000,000 shares to be issued pursuant to the grant or exercise of
awards to employees, officers, consultants and directors under the MAPICS,
Inc. 1998 Long-Term Incentive Plan.
(iv) 100,000 shares to be issued pursuant to the purchase of shares by
employees under the MAPICS, Inc. 1998 Employee Stock Purchase Plan.
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the Plans as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon written or oral request, the Company will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
registration statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information should be
directed to Martin D. Avallone, Corporate Secretary, at (404) 705-3000.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by MAPICS, Inc. (the
"Company") (File No. 0-18674) with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and are deemed to be a part hereof from the date of the filing
of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997;
(3) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since September 30, 1997;
(4) The description of Common Stock contained in the Company's
Registration Statement filed under Section 12 of the Exchange Act, including all
amendments or reports filed for the purpose of updating such description; and
(5) All other documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment to this Registration Statement that indicates that
all securities offered have been sold or that deregisters all securities that
remain unsold.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, 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.
II-1
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As provided under the Georgia Business Corporation Code (the "Code"),
the Company's Articles of Incorporation provide that a director of the Company
shall not be liable to the Company or its shareholders for monetary damages for
any action taken, or any failure to take any action, as a director, except that
such provision shall not eliminate or limit the liability of a director (a) for
any appropriation, in violation of his or her duties, of any business
opportunity of the Company, (b) for acts or omissions which involve intentional
misconduct or a knowing violation of law, (c) for unlawful corporate
distributions, or (d) for any transaction from which the director received an
improper benefit.
Under its Bylaws, the Company is required to indemnify its directors
and board-appointed officers, and may indemnify its agents and employees,
against judgments, fines, penalties, amounts paid in settlement, and reasonable
expenses, including attorney's fees, resulting from various types of legal
actions or proceedings, including, but not limited to any threatened, pending,
or completed action, suit or proceeding whether civil, criminal, administrative,
arbitrative or investigative and whether formal or informal, if the actions of
the party being indemnified meet the standards of conduct specified therein.
Determination concerning whether or not the applicable standard of conduct has
been met can be made by (a) the Board of Directors by a majority vote of a
quorum of disinterested directors, (b) if such quorum cannot be obtained, a
majority vote of a committee of two or more disinterested directors, (c) special
legal counsel, or (d) the disinterested shareholders. No indemnification shall
be made (i) in connection with a proceeding by or in the right of the Company,
except for reasonable expenses incurred in connection with the proceeding if it
is determined that the indemnitee has met the relevant standard of conduct, or
(ii) in connection with any other proceeding in which such person was adjudged
liable on the basis that personal benefit was improperly received by him or her.
The Company is required to advance funds to pay for or reimburse the reasonable
expenses incurred by its officers and board-appointed directors if he or she
delivers to the Company (i) a written affirmation of his or her good faith
belief that he or she has met the relevant standard of conduct or that the
proceeding involves conduct for which such person's liability has been
eliminated under the Company's Articles of Incorporation; and (ii) his or her
written undertaking to repay any funds advanced if it is ultimately determined
that the director or officer is not entitled to indemnification under the Bylaws
or the Code.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
II-2
<PAGE> 5
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Articles of Incorporation of the Company
(incorporated by reference from Exhibit 1
to the Company's Registration Statement on
Form 8-A, dated March 31, 1998)
4.2 By-laws of the Company (incorporated by
reference from Exhibit 2 to the Company's
Registration Statement on Form 8-A, dated
March 31, 1998)
4.3 Specimen Stock Certificate (incorporated by
reference from Exhibit 3 to the Company's
Registration Statement on Form 8-A, dated
March 31, 1998)
4.4 Amended and Restated Rights Agreement, dated
as of March 30, 1998, among MAPICS, Inc., a
Georgia Corporation, MAPICS, Inc., a
Massachusetts Corporation, and BankBoston,
N.A., which includes as Exhibit A the terms
of the Series F Preferred Stock, as Exhibit
B the Form of Rights Certificate and as
Exhibit C the Form of Summary of Rights
(incorporated by reference from Exhibit 4
to the Company's Registration Statement on
From 8-A dated March 31, 1998)
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on signature
page)
99.1 MAPICS, Inc. 1998 Non-Employee Director
Stock Option Plan
99.2 MAPICS, Inc. 1998 Non-Employee Directors
Stock Incentive Plan
99.3 MAPICS, Inc. 1998 Long-Term Incentive Plan
99.4 MAPICS, Inc. 1998 Employee Stock Purchase
Plan
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement;
II-3
<PAGE> 6
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities being offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the 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 will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(signatures on following page)
II-4
<PAGE> 7
SIGNATURES
The Company. Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Atlanta, State of Georgia, on March 30, 1998.
MAPICS, INC.
By: /s/ RICHARD C. COOK
-------------------------------------
Richard C. Cook
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard C. Cook and Martin D. Avallone,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of the, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of March 30, 1998.
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
/s/ RICHARD C. COOK President, Chief Executive Officer and
--------------------------------- Director
Richard C. Cook (Principal Executive Officer)
/s/ WILLIAM J. GILMOUR Vice President of Finance and Chief
---------------------------------
William J. Gilmour Financial and Accounting Officer
(Principal Financial and Accounting Officer)
/s/ GEORGE A. CHAMBERLAIN 3D Director
---------------------------------
George A. Chamberlain 3d
/s/ WILLIAM E. FORD Director
---------------------------------
William E. Ford
</TABLE>
II-5
<PAGE> 8
<TABLE>
<S> <C>
/s/ ROGER HEINEN, JR. Director
---------------------------------
Roger Heinen, Jr.
/s/ EDWARD J. KFOURY Director
---------------------------------
Edward J. Kfoury
/s/ TERRY OSBORNE Director
---------------------------------
Terry Osborne
/s/ H. MITCHELL WATSON, JR. Director
---------------------------------
H. Mitchell Watson, Jr.
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Articles of Incorporation of the Company (incorporated by
reference from Exhibit 1 to the Company's Registration
Statement on Form 8-A dated March 31, 1998)
4.2 By-laws of the Company (incorporated by reference from
Exhibit 2 to the Company's Registration Statement on Form
8-A dated March 31, 1998)
4.3 Specimen Common Stock Certificate (incorporated by
reference from Exhibit 3 to the Company's Registration
Statement on Form 8-A dated March 31, 1998)
4.4 Amended and Restated Rights Agreement, dated
as of March 30, 1998, among MAPICS, Inc., a Georgia
Corporation, MAPICS, Inc., a Massachusetts Corporation,
and BankBoston, N.A., which includes as Exhibit A the
Terms of the Series F Preferred Stock, as Exhibit B the
Form of Rights Certificate and as Exhibit C the Form of
Summary of Rights (incorporated by reference from Exhibit
4 to the Company's Registration Statement on Form 8-A
dated March 31, 1998)
5 Opinion of Counsel
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included on signature page)
99.1 MAPICS, Inc. 1998 Non-Employee Director Stock Option Plan
99.2 MAPICS, Inc. 1998 Non-Employee Directors Stock Incentive
Plan
99.3 MAPICS, Inc. 1998 Long-Term Incentive Plan
99.4 MAPICS, Inc. 1998 Employee Stock Purchase Plan
</TABLE>
<PAGE> 1
EXHIBIT 5
Opinion of Alston & Bird LLP
<PAGE> 2
ALSTON&BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777 Telex: 54-2996
March 30, 1998
MAPICS, Inc.
5775-D Glenridge Drive
Atlanta, Georgia 30328
Re: Form S-8 Registration Statement --
Four Benefit Plans
Ladies and Gentlemen:
We have acted as counsel for MAPICS, Inc., a Georgia corporation (the
"Corporation"), in connection with the referenced Registration Statement on Form
S-8 (the "Registration Statement") being filed by the Corporation with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and covering 1,260,000 shares of the Corporation's common
stock, $0.01 par value ("Common Stock"), that may be issued pursuant to (i) the
MAPICS, Inc. 1998 Non-Employee Director Stock Option Plan, (ii) the MAPICS, Inc.
1998 Non-Employee Directors Stock Incentive Plan, (iii) the MAPICS, Inc. 1998
Long-Term Incentive Plan, and (iv) the MAPICS, Inc. 1998 Employee Stock Purchase
Plan (collectively, the "Plans"). This Opinion Letter is rendered pursuant to
Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Corporation, certificates of public officials and such other documents as we
have deemed appropriate as a basis for the opinions hereinafter set forth. The
opinions set forth herein are limited to the laws of the State of Georgia.
Based upon the foregoing, it is our opinion that the 1,260,000 shares
of Common Stock covered by the Registration Statement and to be issued pursuant
to the Plans, when issued in accordance with the terms and conditions of the
Plans, will be legally and validly issued, fully paid and nonassessable.
This Opinion Letter is provided to you for your benefit and for the
benefit of the Commission, in each case, solely with regard to the Registration
Statement, may be relied upon by you and the Commission only in connection with
the Registration Statement, and may not be relied upon by any other person or
for any other purpose without our prior written consent.
<PAGE> 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD LLP
By: /s/ LAURA G. THATCHER
------------------------------------
Laura G. Thatcher, Partner
<PAGE> 1
EXHIBIT 23.2
Consent of Coopers & Lybrand L.L.P.
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
MAPICS, Inc. on Form S-8 of our report dated October 31, 1997, on our audits of
the combined financial statements of MAPICS Inc. as of September 30, 1997 and
1996 and for each of the three years in the period ended October 30, 1997, which
report is included in the Company's Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
Atlanta, Georgia,
March 30, 1998.
<PAGE> 1
EXHIBIT 99.1
MAPICS, Inc. 1998 Non-Employee Director Stock Option Plan
<PAGE> 2
EXHIBIT 99.1
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(f/k/a Marcam Corporation 1991 Non-Employee Director Stock Option Plan,
as amended and restated as of February 3, 1998)
1. Purpose. The MAPICS, Inc. 1998 Non-Employee Director Stock Option
Plan (hereinafter, the "Plan") is intended to promote the interests of MAPICS,
Inc. (the "Company") by providing an inducement to obtain and retain the
services of qualified persons who are neither employees nor officers of the
Company to serve as members of its Board of Directors (the "Board").
2. Available Shares. The total number of shares of Common Stock, par
value $.01 per share, of the Company (the "Common Stock"), for which options may
be granted under the Plan shall not exceed 310,000 shares, subject to adjustment
in accordance with Section 10 of the Plan. Shares subject to the Plan are
authorized but unissued shares or shares that were once issued and subsequently
reacquired by the Company. If any options granted under the Plan are surrendered
before exercise or lapse without exercise, in whole or in part, the shares
reserved therefor shall continue to be available under the Plan.
3. Administration. This Plan shall be administered by the Compensation
Committee of the Board of Directors of the Company (the "Committee"). Any action
which may be taken by the Committee hereunder may be taken instead by the full
Board of Directors and in such event, the word "Committee" wherever used herein
shall be deemed to mean the Board. The Committee shall, subject to the
provisions of the Plan, have the power to construe the Plan, to determine all
questions hereunder, and to adopt and amend such rules and regulations for the
administration of the Plan as it may deem desirable. 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 under it.
4. Automatic Grant of Options. Subject to the availability of shares
under the Plan, (a) as of the date that a person either (i) is first elected to
the board and is neither an employee nor an officer of the Company at such time,
or (ii) while continuing to serve on the Board, ceases to serve as an employee
or officer of the Company, such person shall be automatically granted on such
date, without further action by the Board, an option to purchase twenty thousand
(20,000) shares of the Common Stock; provided, however, that no such option
shall be granted if prohibited pursuant to the terms of any agreement, whether
existing at the time of grant or thereafter, between the Company and any member
of the Board of Directors or any affiliate of such member, and (b) each person
who is a member of the Board on January 1 of each year, commencing with January
1, 1996, and who is neither an employee nor an officer of the Company on such
date shall be automatically granted on each such date, without further action of
the Board, an option to purchase three thousand (3,000) shares of the Common
Stock; provided, however, that no such option shall be granted if prohibited
pursuant to the terms of any agreement, whether existing at the time of grant or
thereafter, between the Company and any member of the
<PAGE> 3
Board of Directors or any affiliate of such member. The options to be granted
under this Section 4 shall be the only options ever to be granted at any time to
such member under the Plan.
If on any grant date, shares of Common Stock are not available under
the Plan to grant to non-employee directors the full amount of a grant
contemplated by the immediately preceding paragraph, then each such director
shall receive an award (a "Reduced Grant") equal to the number of shares of
Common Stock then available under the Plan divided by the number of non-employee
directors as of the applicable grant date. Fractional shares shall be ignored
and not granted. If a Reduced Grant has been made and, thereafter, during the
term of the Plan, additional shares of Common Stock become available for grant
(e.g., because of the forfeiture or lapse of an option), then each person who
was a non-employee director both on the date on which the Reduced Grant was made
and on the date additional shares of Common Stock become available (a
"Continuing Non-Employee Director") shall receive an additional option to
purchase shares of Common Stock. The number of newly available shares shall be
divided equally among the options granted to the Continuing Non-Employee
Directors; provided, however, that the aggregate number of shares of Common
Stock subject to a Continuing Outside Director's additional option plus any
prior Reduced Grant to the Continuing non-Employee Director on the applicable
grant date shall not exceed the number of shares to which he or she is otherwise
entitled under the preceding paragraph. If more than one Reduced Grant has been
made, available options shall be granted beginning with the earliest such grant
date.
Anything in the Plan to the contrary notwithstanding, the effectiveness
of this amended and restated Plan and of the grant of all options hereunder is
in all respects subject to, and the Plan and options granted under it after
April 29, 2001 shall be of no force and effect unless and until, the approval of
this amended and restated Plan by the affirmative vote of the holders of a
majority of the shares of the Common Stock present in person or by proxy and
entitled to vote at a meeting of stockholders at which this amended and restated
Plan is presented for approval. Except for the specific options referred to
above, no other options shall be granted under the Plan.
5. Option Price. The purchase price of the stock covered by an option
granted pursuant to the Plan shall be 100% of the fair market value of such
shares on the day the option is granted. The option price will be subject to
adjustment in accordance with the provisions of Section 10 of the Plan. For
purposes of the Plan, if, at the time an option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such option is granted and
shall mean (1) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if the Common Stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the Common
Stock on the Nasdaq National Market, if the Common Stock is not then traded on a
national securities exchange; or (iii) the closing bid price (or average of bid
prices) last quoted (on that date) by an established quotation
- 2 -
<PAGE> 4
service for over-the-counter securities, if the Common Stock is not traded on
the Nasdaq National Market.
6. Period of Option. Unless sooner terminated in accordance with the
provisions of Section 8 of the Plan, an option granted hereunder shall expire on
the date which is ten (10) years after the date of grant of the option.
7. Vesting of Shares and Transferability of Options.
(a) Vesting. Options granted under the Plan shall not become
exercisable until they become vested. Options granted under clause (a) of the
first sentence of paragraph 4 of the Plan shall vest in the optionee and thus
become exercisable, in accordance with the following schedule provided that the
optionee has continuously served as a member of the Board through such vesting
date:
<TABLE>
<CAPTION>
Cumulative Number
of Shares for which
Option Will be Exercisable Date of Vesting
- -------------------------- ---------------
<S> <C>
5,000 shares One year after date of grant
10,000 shares Two years after date of grant
15,000 shares Three years after date of grant
20,000 shares Four years after date of grant
</TABLE>
Options granted under clause (b) of the first sentence of Section 4 of
the Plan shall vest in the optionee and thus become exercisable, in accordance
with the following schedule provided that the optionee has continuously served
as a member of the Board through such vesting date:
- 3 -
<PAGE> 5
<TABLE>
<CAPTION>
Cumulative Number
of Shares for which
Option Will be Exercisable Date of Vesting
- -------------------------- ---------------
<S> <C>
750 shares One year after date of grant
1,500 shares Two years after date of grant
2,250 shares Three years after date of grant
3,000 shares Four years after date of grant
</TABLE>
The number of shares as to which options may be exercised shall be
cumulative, so that once the option shall become exercisable as to any shares it
shall continue to be exercisable as to said shares, until expiration or
termination of the option as provided in the Plan.
(b) In the event of a Change in Control (as hereinafter defined) of the
Company, the date on which all outstanding options and all installments of such
options may be exercised shall be accelerated to immediately prior to the time
of the Change in Control.
(c) For purposes of the Plan and any options granted hereunder, a
"Change in Control" means and includes each of the following:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of 25% or more of the combined voting
power of the then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however, that for purposes of
this subsection (i), the following acquisitions shall not constitute a
Change of Control: (1) any acquisition by a Person who is on January 1,
1998 the beneficial owner of 25% or more of the Outstanding Company
Voting Securities, (2) any acquisition directly from the Company, (3)
any acquisition by the Company, (4) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (5) any acquisition by
any corporation pursuant to a transaction which complies with clauses
(1), (2) and (3) of subsection (iii) of this definition; or
(ii) Individuals who, as of January 1, 1998, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a
- 4 -
<PAGE> 6
director subsequent to January 1, 1998 whose election, or nomination
for election by the Company's shareholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board;
or
(iii) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets
of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (1) all or substantially all of
the individuals and entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of
the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction
owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Voting Securities, and
(2) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 25% or more of the combined
voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to
the Business Combination, and (3) at least a majority of the members of
the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board,
providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(d) Legend on Certificates. The certificates representing such shares
shall carry such appropriate legend, and such written instructions shall be
given to the Company's transfer agent, as may be deemed necessary or advisable
by counsel to the Company in order to comply with the requirements of the
Securities Act of 1933 or any state securities laws.
- 5 -
<PAGE> 7
(e) Transferability. Any option granted pursuant to the Plan shall be
transferable by the optionee to any of the following permitted transferees, upon
such reasonable terms and conditions as the Committee may establish: (i) one or
more of the following family members of the optionee: spouse, former spouse,
child (whether natural or adopted), stepchild, any other lineal descendent of
the optionee; (ii) a trust, partnership or other entity established and existing
for the sole benefit of, or under the sole control of, one or more of the above
family members of the optionee, or (iii) any other transferee specifically
approved by the Committee after taking into account any state or federal tax,
securities or other laws applicable to transferable options.
8. TERMINATION OF OPTION RIGHTS.
(a) In the event an optionee ceases to be a member of the Board for any
reason other than death, permanent disability or voluntary resignation from the
Board after age 55 ("Retirement"), any then unexercised portion of options
granted to such optionee shall, to the extent not then vested, immediately
terminate and become void; any portion of an option which is then vested but has
not been exercised at the time the optionee so ceases to be a member of the
Board may be exercised, to the extent it is then vested, by the optionee within
90 days of the date the optionee ceased to be a member of the Board; and all
options shall terminate after such 90 days have expired.
(b) In the event an optionee ceases to be a member of the Board by
reason of Retirement, all vested installments of such optionee's options shall
terminate on their respective expiration dates pursuant to Section 6 of the
Plan. All installments of such optionee's options not vested as of the effective
date of the optionee's retirement shall continue to vest in accordance with
Section 7 and thereafter shall terminate on their respective expiration dates in
accordance with Section 6.
(c) In the event that an optionee ceases to be a member of the Board by
reason of his or her death or permanent disability, any option granted to such
optionee shall be immediately and automatically accelerated and become fully
vested and all unexercised options shall be exercisable by the optionee (or by
the optionee's personal representative, heir or legatee, in the event of death)
until the scheduled expiration date of the option.
(d) For purposes of this Section 8, from and after the Distribution
Date (as defined in that certain Distribution Agreement, by and between the
Company and Marcam Solutions, Inc., dated as of July 17, 1997), the service by
the holder of an option that was outstanding on the Distribution Date as a
director of any of the Company, Marcam Solutions, Inc. or their respective
subsidiaries or successors shall be treated as the service by such holder as a
member of the Board of Directors of the Company.
9. Exercise of Option. Subject to the terms and conditions of the Plan
and the option agreements, an option granted hereunder shall, to the extent then
exercisable, be exercisable in whole or in part by giving written notice to the
Company by mail or in person addressed to Martin D. Avallone, General Counsel,
MAPICS, Inc., at its principal
- 6 -
<PAGE> 8
executive offices, stating the number of shares with respect to which the option
is being exercised; provided, however, that there shall be no such exercise at
any one time as to fewer than one hundred (100) shares or all of the remaining
shares then purchasable by the person or persons exercising the option, if fewer
than one hundred (100) shares. The exercise price shall be payable in United
States dollars upon the exercise of the option and may be paid in cash, by
check, or in shares of Common Stock having a total fair market value on the date
of exercise equal to the exercise price; provided that if the shares surrendered
in payment of the exercise price were themselves acquired pursuant to the
exercise of a stock option, such shares shall have been held by the optionee for
at least six months. The Committee may permit optionees to use any cashless
exercise methods that are permitted by law. The Company's transfer agent shall,
on behalf of the Company, prepare a certificate or certificates representing
such shares acquired pursuant to exercise of the option, shall register the
optionee (or the permitted transferee exercising such option) as the owner of
such shares on the books of the Company and shall cause the fully executed
certificate(s) representing such shares to be delivered to the optionee (or the
permitted transferee exercising such option) as soon as practicable after
payment of the option price in full. The holder of an option shall not have any
rights of a stockholder with respect to the shares covered by the option, except
to the extent that one or more certificates for such shares shall be delivered
to him or her upon the due exercise of the option.
10. Adjustments Upon Changes in Capitalization and Other Matters. Upon
the occurrence of any of the following events, an optionee's rights with respect
to options granted to him or her hereunder shall be adjusted as hereinafter
provided:
(a) Stock Dividends and Stock Splits. If the shares of Common Stock
shall be subdivided or combined into a greater or smaller number of shares or if
the Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
the exercise of options shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination or stock dividend.
(b) Consolidations or Mergers. In the event of a Change in Control of
the Company, each option granted under the Plan which is outstanding but
unvested as of the effective date of the Change in Control shall become
exercisable pursuant to Section 7(b) hereof. In addition, the Committee shall
make appropriate provision in order to preserve but not exceed the value of
outstanding options, for the continuation of all outstanding options by
substituting on an equitable basis for the shares then subject to such options
the consideration payable with respect to the outstanding shares of Common Stock
in connection with the Change in Control.
(c) Recapitalization or Reorganization. If the Company is merged,
consolidated or reorganized into or with another corporation or other legal
person, or if the Company sells or otherwise transfers all or substantially all
of its assets to any other
- 7 -
<PAGE> 9
corporation or other legal person, pursuant to which securities of the Company
or of another corporation, cash or other property are issued with respect to the
outstanding shares of Common Stock, and such transaction does not constitute a
Change in Control, a holder of an option upon exercising an option shall be
entitled to receive for the purchase price paid upon such exercise the
securities, cash or other property he would have received if he had exercised
his option prior to such merger, consolidation, reorganization or sale.
(d) Issuances of Securities. Except as expressly provided herein, no
issuance 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
subject to options. No adjustments shall be made for dividends paid in cash or
in property other than securities of the Company.
(e) Adjustments. Upon the happening of any of the foregoing events, the
class and aggregate number of shares set forth in Sections 2, 4 and 7 of the
Plan that are subject to options which previously have been or subsequently may
be granted under the Plan shall also be appropriately adjusted to reflect such
events. The Board shall determine the specific adjustments to be made under this
Section 10 and its determination shall be conclusive.
11. Restrictions on Issuance of Shares. Notwithstanding the provisions
of Sections 4 and 9 of the Plan, the Company shall have no obligation to deliver
any certificate or certificates upon exercise of an option until one of the
following conditions shall be satisfied: (i) the shares with respect to which
the option has been exercised are at the time of the issue of such shares
effectively registered under applicable Federal and state securities laws as now
in force or hereafter amended, or (ii) counsel for the Company shall have given
an opinion that such shares are exempt from registration under Federal and state
securities laws as now in force or hereafter amended; and the Company has
complied with all applicable laws and regulations with respect thereto,
including without limitation all regulations required by any stock exchange upon
which the Company's outstanding Common Stock is then listed.
12. Representation of Optionee. If requested by the Company, the
optionee shall deliver to the Company written representations and warranties
upon exercise of the option that are necessary to show compliance with Federal
and state securities laws, including to the effect that a purchase of shares
under the option is made for investment and not with a view to their
distribution (as that term is used in the Securities Act of 1933, as amended,
and the regulations thereunder).
13. Option Agreement. Each option granted under the provisions of the
Plan shall be evidenced by a written agreement, contract, or other instrument or
document evidencing the option ("Option Agreement") in such form as may be
approved by the Board, which Option Agreement shall be duly executed and
delivered on behalf of the
- 8 -
<PAGE> 10
Company. The Option Agreement shall contain such terms, provisions and
conditions not inconsistent with the Plan as may be determined by the Board.
14. Termination and Amendment of Plan. Options may no longer be granted
under the Plan after March 30, 2007, and the Plan shall terminate when all
options granted or to be granted hereunder are no longer outstanding. The Board
may at any time terminate the Plan or make such modification or amendment
thereof as it deems advisable; provided, however, that the Board may not,
without approval by the affirmative vote of the holders of a majority of the
shares of Common Stock present in person or by proxy and entitled to vote at the
meeting, (a) increase the maximum number of shares for which options may be
granted under the Plan or the number of shares for which an option may be
granted to any participating director hereunder, (b) change the provisions of
the Plan regarding the termination of the options or the times when they may be
exercised, (c) change the period during which any options may be granted or
remain outstanding or the date on which the Plan shall terminate, or (d) change
the designation of the class of persons eligible to receive options, or
otherwise change Section 4. Termination or any modification or amendment of the
Plan shall not, without consent of a participant, affect his or her rights under
an option previously granted to him or her.
15. Governing Law. The validity and construction of the Plan and the
instruments evidencing options shall be governed by the laws of the State of
Georgia, without giving effect to the principles of conflicts of law thereof.
<TABLE>
<S> <C>
Date Approved by Board of Directors: April 30, 1991
Date Approved by Stockholders: February 13, 1992
Dates Amended by Board of Directors: November 6, 1991
November 14, 1995
September 18, 1996
November 13, 1997
Dates Amendments Approved by Stockholders: February 13, 1996
February 12, 1997
February 3, 1998
</TABLE>
-9-
<PAGE> 1
EXHIBIT 99.2
MAPICS, Inc. 1998 Non-Employee Directors Stock Incentive Plan
<PAGE> 2
EXHIBIT 99.2
MAPICS, INC.
1998 NON-EMPLOYEE DIRECTORS STOCK INCENTIVE PLAN
1. Purpose. The purpose of the MAPICS, Inc. 1998 Non-Employee Directors
Stock Incentive Plan is to attract, retain and compensate highly-qualified
individuals who are not employees of MAPICS, Inc. or any of its subsidiaries or
affiliates for service as members of the Board by providing them with an
ownership interest in the Common Stock of the Company. The Company intends that
the Plan will benefit the Company and its stockholders by allowing Non-Employee
Directors to have a personal financial stake in the Company through an ownership
interest in the Common Stock and will closely associate the interests of
Non-Employee Directors with that of the Company's stockholders.
2. Defined Terms. Unless the context clearly indicates otherwise, the
following terms shall have the following meanings:
"Board" means the Board of Directors of the Company.
"Company" means MAPICS, Inc.
"Committee" has the meaning assigned such term in Section 3.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company.
"Deferral Period" has the meaning set forth in Section 6(d) of the
Plan.
"Discretionary Fees" means the 50% of Fees that may be, but is not
required by Section 6(a) of the Plan to be, received in the form of Stock or
Options.
"Distributions" has the meaning set forth in Section 6(d) of the Plan.
"Election Form" means a form approved by the Committee pursuant to
which a Non-Employee Director elects a method of payment of Fees and whether
payment will be deferred, as provided herein.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value", on any date, means (i) if the Common Stock is
listed on a securities exchange or is traded over the Nasdaq National Market,
the closing sales price on such exchange or over such system on such date or, in
the absence of reported sales on such date, the closing sales price on the
immediately preceding date on which sales were
<PAGE> 3
reported, or (ii) if the Common Stock is not listed on a securities exchange or
traded over the Nasdaq National Market, the mean between the bid and offered
prices as quoted by Nasdaq for such date, provided that if it is determined that
the fair market value is not properly reflected by such Nasdaq quotations, Fair
Market Value will be determined by such other method as the Committee determines
in good faith to be reasonable.
"Fees" means the cash retainer and meeting fees payable by the Company
to a Non-Employee Director for service as a director (and, if applicable, as the
member of a committee of the Board) of the Company, as such amount may be
changed from time to time.
"Hardship" has the meaning set forth in Section 6(e) of the Plan.
"Non-Employee Director" means a director of the Company who is not an
employee of the Company or of any of its subsidiaries or affiliates.
"Option" means an option to purchase Shares granted under Section 7.
Options granted under the Plan are not incentive stock options within the
meaning of Section 422 of the Internal Revenue Code.
"Option Grant Date" means the date upon which an Option is granted to a
Non-Employee Director pursuant to Section 7.
"Option Notice" means a written notice, agreement or certificate with a
Non-Employee Director from the Company evidencing an Option.
"Optionee" means a Non-Employee Director of the Company to whom an
Option has been granted or, in the event of such Non-Employee Director's death
prior to the expiration of an Option, such Non-Employee Director's estate or
other designated beneficiary.
"Options Election Period" means the period designated by the Committee
each year during which Non-Employee Directors may elect to receive Options as
payment of some or all of their Fees. The Options Election Period shall end on
or before September 30 of each year for the following Plan Year.
"Participant" means any Non-Employee Director who is participating in
the Plan.
"Permitted Transferee" of an Optionee means (i) one or more of the
following family members of the Optionee: spouse, former spouse, child (whether
natural or adopted), stepchild, any other lineal descendent of the Optionee;
(ii) a trust, partnership or other entity established and existing for the sole
benefit of, or under the sole control of, one or more of the above family
members of the Optionee, or (iii) any other transferee specifically approved by
the Committee after taking into account any state or federal tax, securities or
other laws applicable to transferable options.
- 2 -
<PAGE> 4
"Plan" means the MAPICS, Inc. 1998 Non-Employee Directors Stock
Incentive Plan, as amended from time to time.
"Plan Year" means the twelve-month period ending on September 30 of
each year which, for purposes of the Plan, is the period for which Fees are
earned.
"Quarterly Service Period" has the meaning set forth in Section 6(a) of
the Plan.
"Stock Grant Date" has the meaning set forth in Section 6(a) of the
Plan.
"Rule 16b-3" means Rule 16b-3, as amended from time to time, of the
Securities and Exchange Commission as promulgated under the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of Common Stock.
"Stock Equivalent Fees" means the 50% of Fees that is required by the
Plan to be received in the form of Shares or Options.
3. Administration. The Plan shall be administered by the Compensation
Committee of the Board of Directors (the "Committee"). Subject to the provisions
of the Plan, the Committee shall be authorized to interpret the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, and
to make all other determinations necessary or advisable for the administration
of the Plan; provided, however, that the Committee shall have no discretion with
respect to the eligibility or selection of Non-Employee Directors to receive
awards under the Plan, the number of Shares subject to any such awards or the
time at which any such awards are to be granted, and provided further, that the
Committee shall not have the authority to take any action or make any
determination that would materially increase the benefits accruing to
Participants under the Plan. The Committee's interpretation of the Plan, and all
actions taken and determinations made by the Committee pursuant to the powers
vested in it hereunder, shall be conclusive and binding upon all parties
concerned including the Company, its stockholders and persons granted awards
under the Plan. The Committee may appoint a plan administrator to carry out the
ministerial functions of the Plan, but the administrator shall have no other
authority or powers of the Committee. Notwithstanding the foregoing, the Board
shall exercise any and all rights, duties and powers of the Committee under the
Plan to the extent required by the applicable exemptive conditions of Rule
16b-3, as determined by the Board its sole discretion.
4. Shares Subject to Plan. The Shares issued under the Plan shall not
exceed in the aggregate 60,000 shares of Common Stock. Such Shares may be
authorized and unissued shares or treasury shares.
- 3 -
<PAGE> 5
5. Participants. All active Non-Employee Directors shall be eligible to
participate in the Plan.
6. Stock Awards.
(a) Grant Dates and Formula for Automatic Grants. Unless a
Non-Employee Director has elected pursuant to Section 7 to receive
Options as payment of his or her Stock Equivalent Fees (as defined
below) for such Plan Year or to defer receipt of Shares as provided in
Section 6(d), Shares of Common Stock shall be automatically granted on
October 1, January 1, April 1 and July 1 of each Plan Year (each such
date is hereinafter referred to as a "Stock Grant Date") to each
eligible Non-Employee Director commencing with the April 1, 1998 Stock
Grant Date. The total number of Shares included in each grant under
this Section 6(a) shall be determined by dividing fifty percent (50%)
of the Fees (the "Stock Equivalent Fees") earned by the Non-Employee
Director during the three-month period immediately preceding the Stock
Grant Date (the "Quarterly Service Period") by the Fair Market Value
per Share on the Stock Grant Date. Fractions will be rounded to the
next highest Share. The Shares or rights to which a Participant is
entitled under this Section 6(a) shall be in lieu of the payment of the
Stock Equivalent Fees in cash or Options.
(b) Grant Dates and Requirements for Elective Grants. Unless a
Non-Employee Director has elected pursuant to Section 6(d) to defer
receipt of Shares, then, commencing with the April 1, 1998 Stock Grant
Date, Shares of Common Stock shall be automatically granted on each
Stock Grant Date to each eligible Non-Employee Director who elects to
receive Shares under this Plan as payment of his or her Discretionary
Fees. Such election must be made on an Election Form filed with the
Committee or the plan administrator prior to the commencement of the
first Quarterly Service Period to which such election applies (or
before March 1, 1998 with respect to the April 1, 1998 Stock Grant
Date) and such election shall remain in effect with respect to all
future Quarterly Service Periods until a subsequent Election Form shall
have been received by the Committee or the plan administrator
indicating a different election. Individuals who are nominated to
become Non-Employee Directors may make such election after such
nomination but prior to the time they are elected to the Board. The
total number of Shares included in each grant under this Section 6(b)
shall be determined by dividing 100% of the Discretionary Fees earned
by the Non-Employee Director during the Quarterly Service Period by the
Fair Market Value per Share on the Stock Grant Date. Fractions will be
rounded to the next highest Share. The Shares or rights to which a
Participant is entitled under this Section 6(b) shall be in lieu of the
payment of the Discretionary Fees in cash or Options.
(c) Termination of Service During Quarterly Service Period. In the
event of termination of service on the Board by any Participant during
a Quarterly Service Period, such Participant's award for the Quarterly
Service Period shall be
-4-
<PAGE> 6
determined in accordance with Sections 6(a) and 6(b) of the Plan based
upon the amount of Fees earned during such Quarterly Service Period
through the date of termination of service, provided, that the grant
date shall be the date of termination of service unless the grant has
been deferred pursuant to Section 6(d) below.
(d) Deferral of Receipt of Shares.
(i) Election to Defer. Each Participant will have the right to elect,
pursuant to a written Election Form delivered to the Committee or the
plan administrator prior to the commencement of each Plan Year (i.e.,
each October 1 through September 30), to defer until after the
Participant's termination of service the grant of the Shares that
would otherwise be granted to the Participant during the next ensuing
Plan Year. Pursuant to this Election Form, the Participant will elect
whether all of the deferred grant will be (a) granted within 30 days
after termination of service or (b) granted in approximately equal
annual installments of Shares over a period of two to ten years (as
the Participant may elect) after the termination of service, each such
annual grant to be made within 30 days after the anniversary of the
termination of service. The deferral Election Form signed by the
Participant prior to the Plan Year will be irrevocable except in case
of Hardship (as defined in Section 6(e)) as determined in good faith
by the Board pursuant to Section 6(e). No Shares will be issued until
the grant date(s) so deferred (the "Deferred Grant Date") at which
time the Company agrees to issue the Shares to the Participant. The
Participant will have no rights as a stockholder with respect to the
deferred rights to Shares, and the rights to such Shares will be
unsecured.
(ii) Deferred Dividend Account. If any dividends or other rights or
distributions of any kind ("Distributions") are distributed to holders
of Common Stock during the period from the applicable Stock Grant Date
until the Deferred Grant Date (the "Deferral Period") but prior to the
Participant's termination of service, an amount equal to the cash
value of such Distributions on their distribution date, as such value
is determined by the Committee, will be credited to a deferred
dividend account for the Participant as follows: the account will be
credited with the right to receive Shares having a Fair Market Value
as of the date of the Distribution equal to the cash value of the
Distribution. The Company will issue Shares equal to the cumulative
total of rights to Shares in such account within 30 days after the
Participant's termination of service.
If a Distribution is distributed to holders of Common Stock after the
Participant's termination of service but prior to the issuance in full
of the deferred Shares, an amount equal to the cash value of such
Distributions pertaining to any Shares still deferred shall be
converted into Shares equivalent in value to the Distribution (based
on the Fair Market Value as of the date of Distribution) and such
Shares will be issued to the Participant as soon as practical after
the date of the Distribution.
- 5 -
<PAGE> 7
No right or interest in the deferred dividend account shall be
subject to liability for the debts, contracts or engagements of the
Participant or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of
law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect; provided,
however, that nothing in this Section 6(d) shall prevent transfers by
will or by the applicable laws of descent and distribution. The
Committee will have the right to adopt other regulations and procedures
to govern deferral of grants of Shares.
(e) Hardship. The Board may accelerate the distribution of all or a
portion of a Participant's deferred grants of Shares on account of his
or her Hardship, subject to the following requirements: (i) the value
of such accelerated distribution shall not exceed the amount necessary
to satisfy the Hardship, less the amount which can be satisfied from
other resources which are reasonably available to the Participant, (ii)
the denial of the Participant's request for a Hardship acceleration
would result in severe financial hardship to the Participant, and (iii)
the Participant has not received an accelerated distribution on account
of Hardship within the 12-month period preceding the acceleration.
For purposes of this Plan, "Hardship" of a Participant, as
determined by the Board in its discretion on the basis of all relevant
facts and circumstances and in accordance with the following
nondiscriminatory and objective standards uniformly interpreted and
consistently applied, shall mean a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident
of the Participant or of his or her dependent, loss of the
Participant's property due to casualty, or other extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant. A financial need shall not constitute a
Hardship unless it is for at least $1,000,000 or the entire value of
the principal amount of the Participant's deferred grants.
7. Stock Option Awards.
(a) Election to Receive Options. A Non-Employee Director may elect
to defer (i) 100% of his or her Stock Equivalent Fees, (ii) 100% of his
or her Discretionary Fees, or (iii) 100% of his or her total Fees by
conversion to Options in accordance with this Section 7. A Non-Employee
Director who wishes to receive Fees for a Plan Year in the form of
Options must irrevocably elect to do so during the Options Election
Period for such Plan Year, by delivering a valid Election Form to the
Committee or the plan administrator. A Non-Employee Director's
participation in Section 7 of the Plan will be effective as of the
first day of the Plan Year beginning after the Committee or the plan
administrator receives the Non-Employee Director's Election Form.
- 6 -
<PAGE> 8
(b) Irrevocable, Annual Election. Elections to receive Options as
payment of Fees are irrevocable and shall be valid only for one Plan
Year. New elections must be made for participation in Section 7 of the
Plan for subsequent Plan Years.
(c) Time of Grant. Options shall be granted to each Non-Employee
Director who, during the applicable Options Election Period, filed with
the Committee or the plan administrator a written irrevocable election
to receive Options as payment of such Non-Employee Director's Stock
Equivalent Fees, Discretionary Fees, or both, payable in the following
Plan Year. Such Options will be granted on January 1, April 1, July 1
and October 1 for the preceding Quarterly Service Periods during such
Plan Year.
(d) Number of Options. The Committee or the plan administrator shall
cause to be calculated in the month of August of each year the
Black-Scholes value of an Option under the Plan to purchase one Share
of Common Stock. Such Black-Scholes value shall apply for purposes of
this Section 7(d) for all Options to be granted in the following Plan
Year. The number of Shares subject to an Option granted pursuant to
this Section 7 shall be the number of whole Shares equal to:
(A times B) divided by C, where:
A = the dollar amount of the Fees that the Non-Employee Director
elects shall be payable in Options; and
B = the quotient of 1 divided by the Black-Scholes value of an
Option for one Share (expressed as a percentage of the Fair Market
Value of one Share of Common Stock); and
C = the Fair Market Value per Share on the Option Grant Date.
In determining the number of Shares subject to an Option, any
fraction of a Share will be rounded to the next highest whole number of
Shares.
For example:
Assume that a Non-Employee Director has elected to defer $5,000 of
his or her Fees, that the Fair Market Value per Share on the Option
Grant Date was $20, and that the most recently determined Black-Scholes
value of an Option was 50% of the Fair Market Value. The Non-Employee
Director would be granted 500 Options as payment of the $5,000
compensation. ($5,000 times 1/50%) divided by $20 FMV = 500 options
granted.
- 7 -
<PAGE> 9
(e) Exercise Price. The total price paid per Share under each Option
granted under this Section 7 shall be the Fair Market Value per Share
on the Option Grant Date.
(f) Exercise of Options. Each Option shall be fully exercisable upon
grant and will remain exercisable for 10 years from the Option Grant
Date regardless of whether the Optionee remains a director of the
Company throughout such term. An Option, or portion thereof, may be
exercised in whole or in part only with respect to whole Shares.
(g) Payment of Exercise Price. Shares shall be issued to the
Optionee (or his Permitted Transferee) pursuant to the exercise of an
Option only upon receipt by the Company from the Optionee (or his
Permitted Transferee) of payment in full of the exercise price. The
exercise price shall be payable in United States dollars upon the
exercise of the Option and may be paid in cash, by check, or in Shares
having a total Fair Market Value on the date of exercise equal to the
exercise price; provided that if the Shares surrendered in payment of
the exercise price were themselves acquired otherwise than on the open
market, such Shares shall have been held for at least six months. The
Committee may permit the use of any cashless exercise methods that are
permitted by law.
(h) Option Notice. Each Option granted under the Plan shall be
evidenced by an Option Notice which shall be executed by an authorized
officer of the Company. Such Option Notice shall contain provisions
regarding (a) the number of Shares that may be issued upon exercise of
the Option, (b) the exercise price per Share of the Option and the
means of payment therefor, (c) the term of the Option, and (d) such
other terms and conditions not inconsistent with the Plan as may be
determined from time to time by the Committee.
(i) Transferability of Options. No Option shall be assignable or
transferable by the Optionee other than by will or the laws of descent
and distribution or to a Permitted Transferee. Any transfer to a
Permitted Transferee shall be subject to the following terms and
conditions:
(i) An Option transferred to a Permitted Transferee shall not
be assignable or transferable by the Permitted Transferee other than by
will or the laws of descent and distribution.
(ii) Transferred Options shall continue to be subject to all
the terms and conditions of the Option as applicable to the original
Optionee (other than the ability to further transfer the Option).
(iii) The Optionee and the Permitted Transferee shall execute
any and all documents reasonably requested by the Committee or the plan
administrator, including without limitation documents (A) to confirm
the status of
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<PAGE> 10
the transferee as a Permitted Transferee, (B) to satisfy any
requirements for an exemption for the transfer under applicable federal
and state securities laws, and (C) to evidence the transfer.
(iv) Shares acquired by a Permitted Transferee through exercise
of an Option have not been registered under the federal Securities Act
or any state securities act and may not be transferred, nor will any
assignee or transferee thereof be recognized as an owner of such Shares
by the Company for any purpose, unless a registration statement under
the Securities Act and any applicable state securities act with respect
to such Shares shall then be in effect or unless the availability of an
exemption from registration with respect to any proposed transfer or
disposition of such Shares shall be established to the satisfaction of
counsel for the Company.
8. Prorated Grants. If on any Quarterly Grant Date, shares of Common
Stock are not available under the Plan to grant to Non-Employee Directors the
full amount of a grant contemplated by the Plan, then each such director shall
receive an award equal to the number of shares of Common Stock then available
under the Plan divided by the number of Non-Employee Directors entitled to a
grant of shares or options on such date. Fractional shares shall be ignored and
not granted. Any shortfall resulting from such proration shall be paid in the
form of cash.
9. Withholding. Whenever the Company issues Shares under the Plan, the
Company shall have the right to withhold from sums due the recipient, or to
require the recipient to remit to the Company, any amount sufficient to satisfy
any federal, state and/or local withholding tax requirements prior to the
delivery of any certificate for such Shares.
10.Adjustments.
(a) Subject to Section 10(c) but notwithstanding any other term of
this Plan, in the event that the Committee determines that any
Distribution (whether in the form of cash, Common Stock, other
securities, or other property), recapitalization, reclassification,
stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange
of Common Stock or other securities of the Company, issuance of
warrants or other rights to purchase Common Stock or other securities
of the Company, or other similar corporate transaction or event, in the
Committee's sole discretion, affects the Common Stock such that an
adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan or with respect to an
award or awards hereunder, then the Committee shall, in such manner as
it may deem equitable, adjust the number and type of Shares (or other
securities or property) which may be granted under the Plan (including,
but not limited to, adjustments of the maximum number and kind of
securities which may be issued); provided,
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<PAGE> 11
however, that to the extent required by the applicable exemptive
conditions of Rule 16b-3, any such adjustment shall be subject to
approval by the Board.
(b) Subject to Section 10(c) but notwithstanding any other term of
this Plan, in the event of any corporate transaction or event described
in paragraph (a) which results in Shares being exchanged for or
converted into cash, securities or other property (including securities
of another corporation), the Committee will have the right to terminate
this Plan as of the date of the transaction or event, in which case all
stock grants deferred under Section 6 shall become the right to receive
such cash, securities or other property, and there shall be substituted
on an equitable basis for each share of Common Stock then subject to an
Option granted pursuant to Section 7 the consideration payable with
respect to the outstanding shares of Common Stock in connection with
such corporate transaction or event, all without any change in the
aggregate purchase price for the Shares then subject to the Option.
(c) The number of Shares finally granted under this Plan shall
always be rounded to the next highest whole Share.
(d) Any decision of the Committee pursuant to the terms of this
Section 10 shall be final, binding and conclusive upon the
Participants, the Company and all other interested parties; provided,
however, that to the extent required by the applicable exemptive
conditions of Rule 16b-3, any such decision shall be subject to
approval by the Board.
11. Amendment. The Committee may terminate or suspend the Plan at any
time, without stockholder approval. The Committee may amend the Plan at any time
and for any reason without stockholder approval; provided, however, that the
Committee may condition any amendment on the approval of stockholders of the
Company if such approval is necessary or deemed advisable with respect to tax,
securities or other applicable laws, policies or regulations. No termination,
modification or amendment of the Plan may, without the consent of a Participant,
adversely affect a Participant's rights under an award granted prior thereto.
12. Indemnification. Each person who is or has been a member of the
Committee or who otherwise participates in the administration or operation of
this Plan shall be indemnified by the Company against, and held harmless from,
any loss, cost, liability or expense that may be imposed upon or incurred by him
or her in connection with or resulting from any claim, action, suit or
proceeding in which such person may be involved by reason of any action taken or
failure to act under the Plan and shall be fully reimbursed by the Company for
any and all amounts paid by such person in satisfaction of judgment against him
or her in any such action, suit or proceeding, provided he or she will give the
Company an opportunity, by written notice to the Committee, to defend the same
at the Company's own expense before he or she undertakes to defend it on his or
her own
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<PAGE> 12
behalf. This right of indemnification shall not be exclusive of any other rights
of indemnification.
The Committee and the Board may rely upon any information furnished by
the Company, its public accountants and other experts. No individual will have
personal liability by reason of anything done or omitted to be done by the
Company, the Committee or the Board in connection with the Plan.
13. Duration of the Plan. The Plan shall remain in effect until
February 2, 2008, unless terminated earlier by the Committee.
14. Expenses of the Plan. The expenses of administering the Plan shall
be borne by the Company.
15. Effective Date. The Plan was originally adopted by the Board on
November 13, 1997, and became effective upon the approval thereof by the
stockholders of the Company on February 3, 1998 (the "Effective Date").
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<PAGE> 1
EXHIBIT 99.3
MAPICS, Inc. 1998 Long-Term Incentive Plan
<PAGE> 2
EXHIBIT 99.3
MAPICS, INC.
1998 LONG-TERM INCENTIVE PLAN
ARTICLE I
PURPOSE
1.1 GENERAL. The purpose of the MAPICS, Inc. 1998 Long-Term Incentive
Plan (the "Plan") is to promote the success, and enhance the value, of MAPICS,
Inc. (the "Corporation"), by linking the personal interests of its employees,
officers, consultants and directors to those of Corporation stockholders and by
providing such persons with an incentive for outstanding performance. The Plan
is further intended to provide flexibility to the Corporation in its ability to
motivate, attract, and retain the services of employees, officers, consultants
and directors upon whose judgment, interest, and special effort the successful
conduct of the Corporation's operation is largely dependent. Accordingly, the
Plan permits the grant of incentive awards from time to time to selected
employees, officers, consultants and directors.
ARTICLE 2
EFFECTIVE DATE
2.1 EFFECTIVE DATE. The Plan shall be effective as of the date upon
which it shall be approved by the Board. However, the Plan shall be submitted to
the stockholders of the Corporation for approval within 12 months of the Board's
approval thereof. No Incentive Stock Options granted under the Plan may be
exercised prior to approval of the Plan by the stockholders and if the
stockholders fail to approve the Plan within 12 months of the Board's approval
thereof, any Incentive Stock Options previously granted hereunder shall be
automatically converted to Non-Qualified Stock Options without any further act.
In the discretion of the Committee, Awards may be made to Covered Employees
which are intended to constitute qualified performance-based compensation under
Code Section 162(m). Any such Awards shall be contingent upon the stockholders
having approved the Plan. If the Plan is approved by the stockholders, no
further awards will be granted under the Marcam Corporation 1994 Stock Plan.
ARTICLE 3
DEFINITIONS
3.1 DEFINITIONS. When a word or phrase appears in this Plan with the
initial letter capitalized, and the word or phrase does not commence a sentence,
the word or phrase shall generally be given the meaning ascribed to it in this
Section or in Section 1.1 unless a clearly different meaning is required by the
context. The following words and phrases shall have the following meanings:
<PAGE> 3
(a) "Award" means any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Unit Award, Dividend Equivalent Award, or
Other Stock-Based Award, or any other right or interest relating to
Stock or cash, granted to a Participant under the Plan.
(b) "Award Agreement" means any written agreement, contract, or
other instrument or document evidencing an Award.
(c) "Board" means the Board of Directors of the Corporation.
(d) "Change in Control" means and includes each of the following:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the 1934 Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of 25% or more of the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection (1), the following
acquisitions shall not constitute a Change of Control: (i) any
acquisition by a Person who is on the Effective Date the beneficial
owner of 25% or more of the Outstanding Company Voting Securities,
(ii) any acquisition directly from the Company, (iii) any
acquisition by the Company, (iv) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (v) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection (3) of this
definition; or
(2) Individuals who, as of the Effective Date, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(3) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case,
unless, following such
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<PAGE> 4
Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Voting Securities, and (ii)
no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 25% or more
of the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such
ownership existed prior to the Business Combination, and (iii) at
least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members
of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(4) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(f) "Committee" means the committee of the Board described in
Article 4.
(g) "Corporation" means MAPICS, Inc.
(h) "Covered Employee" means a covered employee as defined in Code
Section 162(m)(3).
(i) "Disability" shall mean any illness or other physical or mental
condition of a Participant that renders the Participant incapable of
performing his customary and usual duties for the Corporation, or any
medically determinable illness or other physical or mental condition
resulting from a bodily injury, disease or mental disorder which, in
the judgment of the Committee, is permanent and continuous in nature.
The Committee may require such medical or other evidence as it deems
necessary to judge the nature and permanency of the Participant's
condition.
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<PAGE> 5
(j) "Dividend Equivalent" means a right granted to a Participant
under Article 11.
(k) "Effective Date" has the meaning assigned such term in Section
2.1.
(l) "Fair Market Value", on any date, means (i) if the Stock is
listed on a securities exchange or is traded over the Nasdaq National
Market, the closing sales price on such exchange or over such system on
such date or, in the absence of reported sales on such date, the
closing sales price on the immediately preceding date on which sales
were reported, or (ii) if the Stock is not listed on a securities
exchange or traded over the Nasdaq National Market, the mean between
the bid and offered prices as quoted by Nasdaq for such date, provided
that if it is determined that the fair market value is not properly
reflected by such Nasdaq quotations, Fair Market Value will be
determined by such other method as the Committee determines in good
faith to be reasonable.
(m) "Incentive Stock Option" means an Option that is intended to
meet the requirements of Section 422 of the Code or any successor
provision thereto.
(n) "Non-Qualified Stock Option" means an Option that is not an
Incentive Stock Option.
(o) "Option" means a right granted to a Participant under Article 7
of the Plan to purchase Stock at a specified price during specified
time periods. An Option may be either an Incentive Stock Option or a
Non-Qualified Stock Option.
(p) "Other Stock-Based Award" means a right, granted to a
Participant under Article 12, that relates to or is valued by reference
to Stock or other Awards relating to Stock.
(q) "Parent" means a corporation which owns or beneficially owns a
majority of the outstanding voting stock or voting power of the
Corporation. For Incentive Stock Options, the term shall have the same
meaning as set forth in Code Section 424(e).
(r) "Participant" means a person who, as an employee, officer,
consultant or director of the Corporation or any Subsidiary, has been
granted an Award under the Plan.
(s) "Performance Unit" means a right granted to a Participant under
Article 9, to receive cash, Stock, or other Awards, the payment of
which is contingent upon achieving certain performance goals
established by the Committee.
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<PAGE> 6
(t) "Plan" means the MAPICS, Inc. 1998 Long-Term Incentive Plan, as
amended from time to time.
(u) "Restricted Stock Award" means Stock granted to a Participant
under Article 10 that is subject to certain restrictions and to risk of
forfeiture.
(v) "Retirement" means a Participant's voluntary termination of
employment with the Corporation, Parent or Subsidiary after attaining
age 55.
(w) "Stock" means the $.01 par value common stock of the
Corporation and such other securities of the Corporation as may be
substituted for Stock pursuant to Article 14.
(x) "Stock Appreciation Right" or "SAR" means a right granted to a
Participant under Article 8 to receive a payment equal to the
difference between the Fair Market Value of a share of Stock as of the
date of exercise of the SAR over the grant price of the SAR, all as
determined pursuant to Article 8.
(y) "Subsidiary" means any corporation, limited liability company,
partnership or other entity of which a majority of the outstanding
voting stock or voting power is beneficially owned directly or
indirectly by the Corporation. For Incentive Stock Options, the term
shall have the meaning set forth in Code Section 424(f).
(z) "1933 Act" means the Securities Act of 1933, as amended from
time to time.
(z) "1934 Act" means the Securities Exchange Act of 1934, as
amended from time to time.
ARTICLE 4
ADMINISTRATION
4.1 COMMITTEE. The Plan shall be administered by the Compensation
Committee of the Board or, at the discretion of the Board from time to time, by
the Board. The Committee shall consist of two or more members of the Board.
During any time that the Board is acting as administrator of the Plan, it shall
have all the powers of the Committee hereunder, and any reference herein to the
Committee (other than in this Section 4.1) shall include the Board.
4.2 ACTION BY THE COMMITTEE. For purposes of administering the Plan,
the following rules of procedure shall govern the Committee. A majority of the
Committee shall constitute a quorum. The acts of a majority of the members
present at any meeting at which a quorum is present, and acts approved
unanimously in writing by the members of the Committee in lieu of a meeting,
shall be deemed the acts of the
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<PAGE> 7
Committee. Each member of the Committee is entitled to, in good faith, rely or
act upon any report or other information furnished to that member by any officer
or other employee of the Corporation or any Parent or Subsidiary, the
Corporation's independent certified public accountants, or any executive
compensation consultant or other professional retained by the Corporation to
assist in the administration of the Plan.
4.3 AUTHORITY OF COMMITTEE. The Committee has the exclusive power,
authority and discretion to:
(a) Designate Participants;
(b) Determine the type or types of Awards to be granted to each
Participant;
(c) Determine the number of Awards to be granted and the number of
shares of Stock to which an Award will relate;
(d) Determine the terms and conditions of any Award granted under
the Plan, including but not limited to, the exercise price, grant
price, or purchase price, any restrictions or limitations on the Award,
any schedule for lapse of forfeiture restrictions or restrictions on
the exercisability of an Award, and accelerations or waivers thereof,
based in each case on such considerations as the Committee in its sole
discretion determines;
(e) Accelerate the vesting or lapse of restrictions of any
outstanding Award, based in each case on such considerations as the
Committee in its sole discretion determines;
(f) Determine whether, to what extent, and under what
circumstances an Award may be settled in, or the exercise price of an
Award may be paid in, cash, Stock, other Awards, or other property, or
an Award may be canceled, forfeited, or surrendered;
(g) Prescribe the form of each Award Agreement, which need not be
identical for each Participant;
(h) Decide all other matters that must be determined in connection
with an Award;
(i) Establish, adopt or revise any rules and regulations as it may
deem necessary or advisable to administer the Plan;
(j) Make all other decisions and determinations that may be
required under the Plan or as the Committee deems necessary or
advisable to administer the Plan; and
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<PAGE> 8
(k) Amend the Plan or any Award Agreement as provided herein.
4.4. DECISIONS BINDING. The Committee's interpretation of the Plan, any
Awards granted under the Plan, any Award Agreement and all decisions and
determinations by the Committee with respect to the Plan are final, binding, and
conclusive on all parties.
ARTICLE 5
SHARES SUBJECT TO THE PLAN
5.1. NUMBER OF SHARES. Subject to adjustment as provided in Section
14.1, the aggregate number of shares of Stock reserved and available for Awards
or which may be used to provide a basis of measurement for or to determine the
value of an Award (such as with a Stock Appreciation Right or Performance Unit
Award) shall be 1,000,000, of which not more than 20% may be granted as Awards
of Restricted Stock or unrestricted Stock Awards.
5.2. LAPSED AWARDS. To the extent that an Award is canceled,
terminates, expires or lapses for any reason, any shares of Stock subject to the
Award will again be available for the grant of an Award under the Plan and
shares subject to SARs or other Awards settled in cash will be available for the
grant of an Award under the Plan.
5.3. STOCK DISTRIBUTED. Any Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued Stock, treasury Stock
or Stock purchased on the open market.
5.4. LIMITATION ON AWARDS. Notwithstanding any provision in the Plan to
the contrary, the maximum number of shares of Stock with respect to one or more
Options and/or SARs that may be granted during any one calendar year under the
Plan to any one Covered Employee shall be 300,000. The maximum fair market value
(measured as of the date of grant) of any Awards other than Options and SARs
that may be received by a Covered Employee (less any consideration paid by the
Participant for such Award) during any one calendar year under the Plan shall be
$2,000,000.
ARTICLE 6
ELIGIBILITY
6.1. GENERAL. Awards may be granted only to individuals who are
employees, officers, consultants or directors of the Corporation or a Parent or
Subsidiary.
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<PAGE> 9
ARTICLE 7
STOCK OPTIONS
7.1. GENERAL. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(a) EXERCISE PRICE. The exercise price per share of Stock under an
Option shall be determined by the Committee, provided that the exercise
price for any Option shall not be less than the Fair Market Value as of
the date of the grant.
(b) TIME AND CONDITIONS OF EXERCISE. The Committee shall determine
the time or times at which an Option may be exercised in whole or in
part. The Committee also shall determine the performance or other
conditions, if any, that must be satisfied before all or part of an
Option may be exercised. The Committee may waive any exercise
provisions at any time in whole or in part based upon factors as the
Committee may determine in its sole discretion so that the Option
becomes exerciseable at an earlier date.
(c) PAYMENT. The Committee shall determine the methods by which
the exercise price of an Option may be paid, the form of payment,
including, without limitation, cash, shares of Stock, or other property
(including "cashless exercise" arrangements), and the methods by which
shares of Stock shall be delivered or deemed to be delivered to
Participants; provided that if shares of Stock surrendered in payment
of the exercise price were themselves acquired otherwise than on the
open market, such shares shall have been held by the Participant for at
least six months.
(d) EVIDENCE OF GRANT. All Options shall be evidenced by a written
Award Agreement between the Corporation and the Participant. The Award
Agreement shall include such provisions, not inconsistent with the
Plan, as may be specified by the Committee.
(e) ADDITIONAL OPTIONS UPON EXERCISE. The Committee may, in its
sole discretion, provide in an Award Agreement, or in an amendment
thereto, for the automatic grant of a new Option to any Participant who
delivers shares of Stock as full or partial payment of the exercise
price of the original Option. Any new Option granted in such a case (i)
shall be for the same number of shares of Stock as the Participant
delivered in exercising the original Option, (ii) shall have an
exercise price of 100% of the Fair Market Value of the surrendered
shares of Stock on the date of exercise of the original Option (the
grant date for the new Option), and (iii) shall have a term equal to
the unexpired term of the original Option.
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<PAGE> 10
7.2. INCENTIVE STOCK OPTIONS. The terms of any Incentive Stock Options
granted under the Plan must comply with the following additional rules:
(a) EXERCISE PRICE. The exercise price per share of Stock shall be
set by the Committee, provided that the exercise price for any
Incentive Stock Option shall not be less than the Fair Market Value as
of the date of the grant.
(b) EXERCISE. In no event may any Incentive Stock Option be
exercisable for more than ten years from the date of its grant.
(c) LAPSE OF OPTION. An Incentive Stock Option shall lapse under
the earliest of the following circumstances; provided, however, that
the Committee may, prior to the lapse of the Incentive Stock Option
under the circumstances described in paragraphs (3), (4) and (5) below,
provide in writing that the Option will extend until a later date, but
if Option is exercised after the dates specified in paragraphs (3), (4)
and (5) below, it will automatically become a Non-Qualified Stock
Option:
(1) The Incentive Stock Option shall lapse as of the option
expiration date set forth in the Award Agreement.
(2) The Incentive Stock Option shall lapse ten years after it
is granted, unless an earlier time is set in the Award Agreement.
(3) If the Participant terminates employment for any reason
other than as provided in paragraph (4) or (5) below, the Incentive
Stock Option shall lapse, unless it is previously exercised, three
months after the Participant's termination of employment; provided,
however, that if the Participant's employment is terminated by the
Company for cause or by the Participant without the consent of the
Company, the Incentive Stock Option shall (to the extent not
previously exercised) lapse immediately.
(4) If the Participant terminates employment by reason of his
Disability, the Incentive Stock Option shall lapse, unless it is
previously exercised, one year after the Participant's termination
of employment.
(5) If the Participant dies while employed, or during the
three-month period described in paragraph (3) or during the
one-year period described in paragraph (4) and before the Option
otherwise lapses, the Option shall lapse one year after the
Participant's death. Upon the Participant's death, any exercisable
Incentive Stock Options may be exercised by the Participant's
beneficiary, determined in accordance with Section 13.6.
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<PAGE> 11
Unless the exercisability of the Incentive Stock Option is
accelerated as provided in Article 13, if a Participant exercises an
Option after termination of employment, the Option may be exercised
only with respect to the shares that were otherwise vested on the
Participant's termination of employment.
(d) INDIVIDUAL DOLLAR LIMITATION. The aggregate Fair Market Value
(determined as of the time an Award is made) of all shares of Stock
with respect to which Incentive Stock Options are first exercisable by
a Participant in any calendar year may not exceed $100,000.00.
(e) TEN PERCENT OWNERS. No Incentive Stock Option shall be granted
to any individual who, at the date of grant, owns stock possessing more
than ten percent of the total combined voting power of all classes of
stock of the Corporation or any Parent or Subsidiary unless the
exercise price per share of such Option is at least 110% of the Fair
Market Value per share of Stock at the date of grant and the Option
expires no later than five years after the date of grant.
(f) EXPIRATION OF INCENTIVE STOCK OPTIONS. No Award of an
Incentive Stock Option may be made pursuant to the Plan after the day
immediately prior to the tenth anniversary of the Effective Date.
(g) RIGHT TO EXERCISE. During a Participant's lifetime, an
Incentive Stock Option may be exercised only by the Participant or, in
the case of the Participant's Disability, by the Participant's guardian
or legal representative.
(h) DIRECTORS. The Committee may not grant an Incentive Stock
Option to a non-employee director. The Committee may grant an Incentive
Stock Option to a director who is also an employee of the Corporation
or Parent or Subsidiary but only in that individual's position as an
employee and not as a director.
ARTICLE 8
STOCK APPRECIATION RIGHTS
8.1. GRANT OF SARs. The Committee is authorized to grant SARs to
Participants on the following terms and conditions:
(a) RIGHT TO PAYMENT. Upon the exercise of a Stock Appreciation
Right, the Participant to whom it is granted has the right to receive
the excess, if any, of:
(1) The Fair Market Value of one share of Stock on the date of
exercise; over
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<PAGE> 12
(2) The grant price of the Stock Appreciation Right as
determined by the Committee, which shall not be less than the Fair
Market Value of one share of Stock on the date of grant.
(b) OTHER TERMS. All awards of Stock Appreciation Rights shall be
evidenced by an Award Agreement. The terms, methods of exercise,
methods of settlement, form of consideration payable in settlement, and
any other terms and conditions of any Stock Appreciation Right shall be
determined by the Committee at the time of the grant of the Award and
shall be reflected in the Award Agreement.
ARTICLE 9
PERFORMANCE UNITS
9.1. GRANT OF PERFORMANCE UNITS. The Committee is authorized to grant
Performance Units to Participants on such terms and conditions as may be
selected by the Committee. The Committee shall have the complete discretion to
determine the number of Performance Units granted to each Participant. All
Awards of Performance Units shall be evidenced by an Award Agreement.
9.2. RIGHT TO PAYMENT. A grant of Performance Units gives the
Participant rights, valued as determined by the Committee, and payable to, or
exercisable by, the Participant to whom the Performance Units are granted, in
whole or in part, as the Committee shall establish at grant or thereafter. The
Committee shall set performance goals and other terms or conditions to payment
of the Performance Units in its discretion which, depending on the extent to
which they are met, will determine the number and value of Performance Units
that will be paid to the Participant.
9.3. OTHER TERMS. Performance Units may be payable in cash, Stock, or
other property, and have such other terms and conditions as determined by the
Committee and reflected in the Award Agreement.
ARTICLE 10
RESTRICTED STOCK AWARDS
10.1. GRANT OF RESTRICTED STOCK. The Committee is authorized to make
Awards of Restricted Stock to Participants in such amounts and subject to such
terms and conditions as may be selected by the Committee. All Awards of
Restricted Stock shall be evidenced by a Restricted Stock Award Agreement.
10.2. ISSUANCE AND RESTRICTIONS. Restricted Stock shall be subject to
such restrictions on transferability and other restrictions as the Committee may
impose (including, without limitation, limitations on the right to vote
Restricted Stock or the right to receive dividends on the Restricted Stock).
These restrictions may lapse separately or in combination at such times, under
such circumstances, in such installments, upon the
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<PAGE> 13
satisfaction of performance goals or otherwise, as the Committee determines at
the time of the grant of the Award or thereafter.
10.3. FORFEITURE. Except as otherwise determined by the Committee at
the time of the grant of the Award or thereafter, upon termination of employment
during the applicable restriction period or upon failure to satisfy a
performance goal during the applicable restriction period, Restricted Stock that
is at that time subject to restrictions shall be forfeited and reacquired by the
Corporation; provided, however, that the Committee may provide in any Award
Agreement that restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of terminations resulting
from specified causes, and the Committee may in other cases waive in whole or in
part restrictions or forfeiture conditions relating to Restricted Stock.
10.4. CERTIFICATES FOR RESTRICTED STOCK. Restricted Stock granted under
the Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing shares of Restricted Stock are registered in the name
of the Participant, certificates must bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such Restricted Stock.
ARTICLE 11 DIVIDEND EQUIVALENTS
11.1 GRANT OF DIVIDEND EQUIVALENTS. The Committee is authorized to
grant Dividend Equivalents to Participants subject to such terms and conditions
as may be selected by the Committee. Dividend Equivalents shall entitle the
Participant to receive payments equal to dividends with respect to all or a
portion of the number of shares of Stock subject to an Award, as determined by
the Committee. The Committee may provide that Dividend Equivalents be paid or
distributed when accrued or be deemed to have been reinvested in additional
shares of Stock, or otherwise reinvested.
ARTICLE 12
OTHER STOCK-BASED AWARDS
12.1. GRANT OF OTHER STOCK-BASED AWARDS. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants such other
Awards that are payable in, valued in whole or in part by reference to, or
otherwise based on or related to shares of Stock, as deemed by the Committee to
be consistent with the purposes of the Plan, including without limitation shares
of Stock awarded purely as a "bonus" and not subject to any restrictions or
conditions, convertible or exchangeable debt securities, other rights
convertible or exchangeable into shares of Stock, and Awards valued by reference
to book value of shares of Stock or the value of securities of or the
performance of specified Parents or Subsidiaries. The Committee shall determine
the terms and conditions of such Awards.
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<PAGE> 14
ARTICLE 13
PROVISIONS APPLICABLE TO AWARDS
13.1. STAND-ALONE, TANDEM, AND SUBSTITUTE AWARDS. Awards granted under
the Plan may, in the discretion of the Committee, be granted either alone or in
addition to, in tandem with, or in substitution for, any other Award granted
under the Plan. If an Award is granted in substitution for another Award, the
Committee may require the surrender of such other Award in consideration of the
grant of the new Award. Awards granted in addition to or in tandem with other
Awards may be granted either at the same time as or at a different time from the
grant of such other Awards.
13.2. EXCHANGE PROVISIONS. The Committee may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Stock,
or another Award (subject to Section 14.1), based on the terms and conditions
the Committee determines and communicates to the Participant at the time the
offer is made.
13.3. TERM OF AWARD. The term of each Award shall be for the period as
determined by the Committee, provided that in no event shall the term of any
Incentive Stock Option or a Stock Appreciation Right granted in tandem with the
Incentive Stock Option exceed a period of ten years from the date of its grant
(or, if Section 7.2(e) applies, five years from the date of its grant).
13.4. FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and
any applicable law or Award Agreement, payments or transfers to be made by the
Corporation or a Parent or Subsidiary on the grant or exercise of an Award may
be made in such form as the Committee determines at or after the time of grant,
including without limitation, cash, Stock, other Awards, or other property, or
any combination, and may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case determined in accordance with
rules adopted by, and at the discretion of, the Committee.
13.5. LIMITS ON TRANSFER. No right or interest of a Participant in any
unexercised or restricted Award may be pledged, encumbered, or hypothecated to
or in favor of any party other than the Corporation or a Parent or Subsidiary,
or shall be subject to any lien, obligation, or liability of such Participant to
any other party other than the Corporation or a Parent or Subsidiary. No
unexercised or restricted Award shall be assignable or transferable by a
Participant other than by will or the laws of descent and distribution or,
except in the case of an Incentive Stock Option, pursuant to a domestic
relations order that would satisfy Section 414(p)(1)(A) of the Code if such
Section applied to an Award under the Plan; provided, however, that the
Committee may (but need not) permit other transfers where the Committee
concludes that such transferability (i) does not result in accelerated taxation,
(ii) does not cause any Option intended to be an incentive stock option to fail
to be described in Code Section 422(b), and (iii) is otherwise appropriate and
desirable, taking into account any factors deemed relevant, including without
limitation, any state or federal tax or securities laws or regulations
applicable to transferable Awards.
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<PAGE> 15
13.6 BENEFICIARIES. Notwithstanding Section 13.5, a Participant may, in
the manner determined by the Committee, designate a beneficiary to exercise the
rights of the Participant and to receive any distribution with respect to any
Award upon the Participant's death. A beneficiary, legal guardian, legal
representative, or other person claiming any rights under the Plan is subject to
all terms and conditions of the Plan and any Award Agreement applicable to the
Participant, except to the extent the Plan and Award Agreement otherwise
provide, and to any additional restrictions deemed necessary or appropriate by
the Committee. If no beneficiary has been designated or survives the
Participant, payment shall be made to the Participant's estate. Subject to the
foregoing, a beneficiary designation may be changed or revoked by a Participant
at any time provided the change or revocation is filed with the Committee.
13.7. STOCK CERTIFICATES. All Stock certificates delivered under the
Plan are subject to any stop-transfer orders and other restrictions as the
Committee deems necessary or advisable to comply with federal or state
securities laws, rules and regulations and the rules of any national securities
exchange or automated quotation system on which the Stock is listed, quoted, or
traded.
The Committee may place legends on any Stock certificate to reference
restrictions applicable to the Stock.
13.8 ACCELERATION UPON DEATH OR DISABILITY. Notwithstanding any other
provision in the Plan or any Participant's Award Agreement to the contrary, upon
the Participant's death or Disability during his employment or service as a
consultant or director, all outstanding Options, Stock Appreciation Rights, and
other Awards in the nature of rights that may be exercised shall become fully
exercisable and all restrictions on outstanding Awards shall lapse. Any Option
or Stock Appreciation Rights Awards shall thereafter continue or lapse in
accordance with the other provisions of the Plan and the Award Agreement. To the
extent that this provision causes Incentive Stock Options to exceed the dollar
limitation set forth in Section 7.2(d), the excess Options shall be deemed to be
Non-Qualified Stock Options.
13.9. ACCELERATION UPON A CHANGE IN CONTROL. Except as otherwise
provided in the Award Agreement, upon the occurrence of a Change in Control, all
outstanding Options, Stock Appreciation Rights, and other Awards in the nature
of rights that may be exercised shall become fully exercisable and all
restrictions on outstanding Awards shall lapse; provided, however that such
acceleration will not occur if, in the opinion of the Company's accountants,
such acceleration would preclude the use of "pooling of interest" accounting
treatment for a Change in Control transaction that (a) would otherwise qualify
for such accounting treatment, and (b) is contingent upon qualifying for such
accounting treatment. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 7.2(d), the excess
Options shall be deemed to be Non-Qualified Stock Options.
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<PAGE> 16
13.10. ACCELERATION UPON CERTAIN EVENTS NOT CONSTITUTING A CHANGE IN
CONTROL. In the event of the occurrence of any circumstance, transaction or
event not constituting a Change in Control (as defined in Section 3.1) but which
the Board of Directors deems to be, or to be reasonably likely to lead to, an
effective change in control of the Company of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of the 1934 Act, the
Committee may in its sole discretion declare all outstanding Options, Stock
Appreciation Rights, and other Awards in the nature of rights that may be
exercised to be fully exercisable, and/or all restrictions on all outstanding
Awards to have lapsed, in each case, as of such date as the Committee may, in
its sole discretion, declare, which may be on or before the consummation of such
transaction or event. To the extent that this provision causes Incentive Stock
Options to exceed the dollar limitation set forth in Section 7.2(d), the excess
Options shall be deemed to be Non-Qualified Stock Options.
13.11. ACCELERATION FOR ANY OTHER REASON. Regardless of whether an
event has occurred as described in Section 13.9 or 13.10 above, the Committee
may in its sole discretion at any time determine that all or a portion of a
Participant's Options, Stock Appreciation Rights, and other Awards in the nature
of rights that may be exercised shall become fully or partially exercisable,
and/or that all or a part of the restrictions on all or a portion of the
outstanding Awards shall lapse, in each case, as of such date as the Committee
may, in its sole discretion, declare. The Committee may discriminate among
Participants and among Awards granted to a Participant in exercising its
discretion pursuant to this Section 13.11.
13.12 EFFECT OF ACCELERATION. If an Award is accelerated under Section
13.9 or 13.10, the Committee may, in its sole discretion, provide (i) that the
Award will expire after a designated period of time after such acceleration to
the extent not then exercised, (ii) that the Award will be settled in cash
rather than Stock, (iii) that the Award will be assumed by another party to the
transaction giving rise to the acceleration or otherwise be equitably converted
in connection with such transaction, or (iv) any combination of the foregoing.
The Committee's determination need not be uniform and may be different for
different Participants whether or not such Participants are similarly situated.
13.13. PERFORMANCE GOALS. The Committee may determine that any Award
granted pursuant to this Plan to a Participant (including, but not limited to,
Participants who are Covered Employees) shall be determined solely on the basis
of (a) the achievement by the Corporation or a Parent or Subsidiary of a
specified target return, or target growth in return, on equity or assets, (b)
the Corporation's, Parent's or Subsidiary's stock price, (c) the achievement by
an individual or a business unit of the Corporation, Parent or Subsidiary of a
specified target, or target growth in, revenues, net income or earnings per
share, (d) the achievement of objectively determinable goals with respect to
product delivery, product quality, customer satisfaction, meeting budgets and/or
retention of employees or (e) any combination of the goals set forth in (a)
through (d) above. If an Award is made on such basis, the Committee shall
establish goals prior to the beginning of
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<PAGE> 17
the period for which such performance goal relates (or such later date as may be
permitted under Code Section 162(m) or the regulations thereunder) and the
Committee may for any reason reduce (but not increase) any Award,
notwithstanding the achievement of a specified goal. Any payment of an Award
granted with performance goals shall be conditioned on the written certification
of the Committee in each case that the performance goals and any other material
conditions were satisfied.
13.14. TERMINATION OF EMPLOYMENT. Whether military, government or other
service or other leave of absence shall constitute a termination of employment
shall be determined in each case by the Committee at its discretion, and any
determination by the Committee shall be final and conclusive. A termination of
employment shall not occur in a circumstance in which a Participant transfers
from the Corporation to one of its Parents or Subsidiaries, transfers from a
Parent or Subsidiary to the Corporation, or transfers from one Parent or
Subsidiary to another Parent or Subsidiary.
ARTICLE 14
CHANGES IN CAPITAL STRUCTURE
14.1. GENERAL. In the event a stock dividend is declared upon the
Stock, the shares of Stock then subject to each Award shall be increased
proportionately without any change in the aggregate purchase price therefor. In
the event the Stock shall be changed into or exchanged for a different number or
class of shares of stock or securities of the Corporation or of another
corporation, whether through reorganization, recapitalization, reclassification,
stock split-up, combination of shares, merger or consolidation, there shall be
substituted for each such share of Stock then subject to each Award the number
and class of shares into which each outstanding share of Stock shall be so
exchanged, all without any change in the aggregate purchase price for the shares
then subject to each Award.
ARTICLE 15
AMENDMENT, MODIFICATION AND TERMINATION
15.1. AMENDMENT, MODIFICATION AND TERMINATION. The Board or the
Committee may, at any time and from time to time, amend, modify or terminate the
Plan without stockholder approval; provided, however, that the Board or
Committee may condition any amendment or modification on the approval of
stockholders of the Company if such approval is necessary or deemed advisable
with respect to tax, securities or other applicable laws, policies or
regulations.
15.2 AWARDS PREVIOUSLY GRANTED. At any time and from time to time, the
Committee may amend, modify or terminate any outstanding Award without approval
of the Participant; provided, however, that such amendment, modification or
termination shall not, without the Participant's consent, reduce or diminish the
value of such Award determined as if the Award had been exercised, vested,
cashed in or otherwise settled on the date of such amendment or termination; and
provided further that, except as
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otherwise permitted in the Plan, the exercise price of any Option may not be
reduced and the original term of any Option may not be extended. No termination,
amendment, or modification of the Plan shall adversely affect any Award
previously granted under the Plan, without the written consent of the
Participant.
ARTICLE 16
GENERAL PROVISIONS
16.1. NO RIGHTS TO AWARDS. No Participant or employee, officer,
consultant or director shall have any claim to be granted any Award under the
Plan, and neither the Corporation nor the Committee is obligated to treat
Participants and employees, officers, consultants or directors uniformly.
16.2. NO STOCKHOLDER RIGHTS. No Award gives the Participant any of the
rights of a stockholder of the Corporation unless and until shares of Stock are
in fact issued to such person in connection with such Award.
16.3. WITHHOLDING. The Corporation or any Parent or Subsidiary shall
have the authority and the right to deduct or withhold, or require a Participant
to remit to the Corporation, an amount sufficient to satisfy federal, state, and
local taxes (including the Participant's FICA obligation) required by law to be
withheld with respect to any taxable event arising as a result of the Plan. With
respect to withholding required upon any taxable event under the Plan, the
Committee may, at the time the Award is granted or thereafter, require that any
such withholding requirement be satisfied, in whole or in part, by withholding
shares of Stock having a Fair Market Value on the date of withholding equal to
the amount to be withheld for tax purposes, all in accordance with such
procedures as the Committee establishes.
16.4. NO RIGHT TO EMPLOYMENT OR OTHER STATUS. Nothing in the Plan or
any Award Agreement shall interfere with or limit in any way the right of the
Corporation or any Parent or Subsidiary to terminate any Participant's
employment or status as a consultant or director at any time, nor confer upon
any Participant any right to continue as an employee, officer, consultant or
director of the Corporation or any Parent or Subsidiary.
l6.5. UNFUNDED STATUS OF AWARDS. The Plan is intended to be an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Award Agreement shall give the Participant any rights that
are greater than those of a general creditor of the Corporation or any Parent or
Subsidiary.
16.6. RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall
be taken into account in determining any benefits under any pension, retirement,
savings, profit sharing, group insurance, welfare or benefit plan of the
Corporation or any Parent or Subsidiary unless provided otherwise in such other
plan.
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<PAGE> 19
16.7. EXPENSES. The expenses of administering the Plan shall be borne
by the Corporation and its Parents or Subsidiaries.
16.8. TITLES AND HEADINGS. The titles and headings of the Sections in
the Plan are for convenience of reference only, and in the event of any
conflict, the text of the Plan, rather than such titles or headings, shall
control.
16.9. GENDER AND NUMBER. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
16.10. FRACTIONAL SHARES. No fractional shares of Stock shall be issued
and the Committee shall determine, in its discretion, whether cash shall be
given in lieu of fractional shares or whether such fractional shares shall be
eliminated by rounding up.
16.11. GOVERNMENT AND OTHER REGULATIONS. The obligation of the
Corporation to make payment of awards in Stock or otherwise shall be subject to
all applicable laws, rules, and regulations, and to such approvals by government
agencies as may be required. The Corporation shall be under no obligation to
register under the 1933 Act, or any state securities act, any of the shares of
Stock paid under the Plan. The shares paid under the Plan may in certain
circumstances be exempt from registration under the 1933 Act, and the
Corporation may restrict the transfer of such shares in such manner as it deems
advisable to ensure the availability of any such exemption.
16.12. GOVERNING LAW. To the extent not governed by federal law, the
Plan and all Award Agreements shall be construed in accordance with and governed
by the laws of the State of Georgia.
16.13 ADDITIONAL PROVISIONS. Each Award Agreement may contain such
other terms and conditions as the Committee may determine; provided that such
other terms and conditions are not inconsistent with the provisions of this
Plan.
The foregoing is hereby acknowledged as being the MAPICS, Inc. 1998
Long-Term Incentive Plan as adopted by the Board of Directors of the Company on
November 13, 1997, and approved by the stockholders of the Company on February
3, 1998.
MAPICS, INC.
By: /s/ Martin Avallone
----------------------------------
Its: Corporate Secretary
<PAGE> 1
EXHIBIT 99.4
MAPICS, Inc. 1998 Employee Stock Purchase Plan
<PAGE> 2
EXHIBIT 99.4
MAPICS, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
Article 1 - Purpose
The Amended and Restated 1990 Employee Stock Purchase Plan is hereby
amended and restated in its entirety and renamed the MAPICS, Inc. 1998 Employee
Stock Purchase Plan (hereinafter the "Plan"). The Plan is intended as an
incentive to, and to encourage stock ownership by, all eligible employees of
MAPICS, Inc. (formerly known as Marcam Corporation, the "Company"), and its
participating subsidiaries (as defined in Article 17) so that they may share in
the growth of the Company by acquiring or increasing their proprietary interest
in the Company. The Plan is designed to encourage eligible employees to remain
in the employ of the Company. It is intended that options issued pursuant to
this Plan will constitute options issued pursuant to an "employee stock purchase
plan" within the meaning of Section 423(b) of the Internal Revenue Code of 1986,
as amended (the "Code").
Article 2 - Administration of the Plan.
The Plan may be administered by the Compensation Committee of the Board
of Directors of the Company (the "Committee"). Any action which may be taken by
the Committee hereunder may be taken instead by the full Board of Directors and,
in such event, the word "Committee" wherever used herein shall be deemed to mean
the full Board.
The interpretation and construction by the Committee of any provisions
of the Plan or of any option granted under it shall be final, unless otherwise
determined by the Board of Directors. The Committee may from time to time adopt
such rules and regulations for carrying out the Plan as it may deem best,
provided that any such rules and regulations shall be applied on a uniform basis
to all employees under the Plan. No member of the Board of Directors or the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any option granted under it. In the event the Board
of Directors fails to appoint or refrains from appointing a Committee, the Board
of Directors shall have all power and authority to administer the Plan. In such
event, the word "Committee" wherever used herein shall be deemed to mean the
Board of Directors.
Article 3 - Eligible Employees.
All employees of the Company or any of its participating subsidiaries
shall be eligible to receive options under this Plan to purchase the Company's
Common Stock, and all eligible employees shall have the same rights and
privileges hereunder. Persons who are employed on the first day of any Payment
Period (as defined in Article 5) shall receive their options as of such day.
Persons who are employed after any date on which options are granted under this
Plan shall be granted options on the next date of the next succeeding Payment
Period on which options
<PAGE> 3
are granted to all eligible employees. Directors who are not employees of the
Company shall not be eligible to receive options under this Plan. In no event
may an employee be granted an option if such employee, immediately after the
option is granted, owns 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 its
parent corporation or subsidiary corporations, as the terms, "parent
corporation" and "subsidiary corporation" are defined in Section 424(e) and (f)
of the Code. For purposes of determining stock ownership under this paragraph,
the rules of Section 424(d) of the Code shall apply, and stock which the
employee may purchase under outstanding options shall be treated as stock owned
by the employee.
For purposes of this Article 3, the term "employee" shall not include
an employee whose customary employment is twenty (20) hours or less per week or
whose customary employment is for not more than five (5) months in any calendar
year.
Article 4 - Stock Subject to the Plan.
The stock subject to the options under the Plan shall be shares of the
Company's authorized but unissued Common Stock, par value $.01 per share, or
shares of such Common Stock reacquired by the Company, including shares
purchased in the open market. The aggregate number of shares which may be
purchased pursuant to the Plan is 700,000, subject to adjustment as provided in
Article 12. In the event any option granted under the Plan shall expire or
terminate for any reason without having been exercised in full or shall cease
for any reason to be exercisable in whole or in part, the unpurchased shares
subject thereto shall again be available under the Plan.
Article 5 - Payment Periods and Stock Options.
Prior to this amendment and restatement of the Plan, the Payment
Periods during which payroll deductions have been accumulated under the Plan
were the six-month periods commencing and ending on or about February 1 to July
31 and August 1 to January 31 of each year. The first Payment Period commencing
after the effective date of this amendment and restatement of the Plan shall be
the five-month period from August 1, 1998 through December 31, 1998. Thereafter,
the Payment Periods during which payroll deductions will be accumulated under
the Plan will be the six-month periods from January 1 through June 30 and from
July 1 through December 31 of each year, respectively. Payroll deductions made
from bonus and commission payments will be deemed accumulated under the Plan
during the Payment Period during which such payments are made. All other payroll
deductions will be deemed accumulated under the Plan during the Payment Period
during which the regular payroll period to which it relates ends.
Twice each year, on the first business day of each Payment Period, the
Company will grant to each eligible employee who is then a participant in the
Plan an option to purchase on the last day of such Payment Period, at the Option
Price hereinafter provided
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<PAGE> 4
for, a maximum of Five Hundred (500) shares, on condition that such employee
remains eligible to participate in the Plan throughout such Payment Period. The
participant shall be entitled to exercise such option so granted only to the
extent of the participant's accumulated payroll deductions on the last day of
such Payment Period. In the event that the participant's accumulated payroll
deductions on the last day of the Payment Period would enable the participant to
purchase more than 500 shares except for the 500-share limitation, the excess of
the amount of the accumulated payroll deductions over the aggregate purchase
price of the 500 shares shall be promptly refunded to the participant by the
Company, without interest. The Option Price for each Payment Period shall be the
lesser of (i) 85% of the fair market value of the Company's Common Stock on the
first business day of the Payment Period, or (ii) 85% of the fair market value
of the Company's Common Stock on the last business day of the Payment Period, in
either event, rounded up to avoid fractions of a dollar other than 1/4, 1/2 and
3/4. The foregoing limitation on the number of shares which may be granted in
any Payment Period and the Option Price per share shall be subject to adjustment
as provided in Article 12.
For purposes of this Plan, the term "fair market value" on any date
means (i) the average (on that date) of the high and low prices of the Company's
Common Stock on the principal national securities exchange on which the Common
Stock is traded if the Common Stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the Common
Stock on the Nasdaq National Market, if the Common Stock is not then traded on a
national securities exchange; or (iii) the average of the closing bid and asked
prices last quoted (on that date) by an established quotation service for
over-the-counter securities, if the Common Stock is not reported on the Nasdaq
National Market. If the Company's Common Stock is not publicly traded at the
time an option is granted under this Plan, "fair market value" shall mean the
fair market value of the Common Stock as determined by the Committee after
taking into consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
For purposes of this Plans the term "business day" means a day on which
there is trading on the Nasdaq National Market or on the aforementioned national
securities exchange, whichever is applicable pursuant to the preceding
paragraph.
No employee shall be granted an option which permits the employee's
right to purchase common Stock under this Plan, and under all other Section
423(b) employee stock purchase plans of the Company or any parent or subsidiary
corporations, to accrue at a rate which exceeds $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. The purpose of the
limitation in the preceding sentence is to comply with Section 423(b)(8) of the
Code.
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<PAGE> 5
Article 6 - Exercise of Option.
Each eligible employee who continues to be a participant in the Plan on
the last business day of a Payment Period shall be deemed to have exercised
his/her option on such date and shall be deemed to have purchased from the
Company such number of full shares of Common Stock reserved for the purpose of
the Plan as his/her accumulated payroll deductions on such date will pay for at
the Option Price, subject to the 500-share limit of the option. If a participant
is not an employee on the last business day of a Payment Period, he/she shall
not be entitled to exercise his/her option. Only full shares of Common Stock may
be purchased under the Plan. Unused payroll deductions remaining in an
employee's account at the end of a Payment Period (other than amounts refunded
to the employee pursuant to Article 5) will be carried forward to the succeeding
Payment Period.
Article 7 - Authorization for Entering the Plan.
An employee may enter the Plan by filling out, signing and delivering
to the Company an authorization:
A. Stating the percentage to be deducted regularly from the
employee's pay;
B. Authorizing the purchase of stock for the employee in each
Payment Period in accordance with the terms of the Plan; and
C. Specifying the exact name in which stock purchased for the
employee is to be issued as provided under Article 11 hereof.
Such authorization must be received by the Company at least ten (10)
days before the beginning date of the next succeeding Payment Period.
Unless an employee files a new authorization or withdraws from the
Plan, the deductions and purchases under the authorization the employee has on
file under the Plan will continue from one Payment Period to succeeding Payment
Periods as long as the Plan remains in effect.
The Company will accumulate and hold for the employee's account the
amounts deducted from his/her pay. No interest will be paid on these amounts.
Article 8 - Maximum Amount
An employee may authorize payroll deductions in an amount (expressed as
a percentage) not less than one percent (1%) but not more than ten percent (10%)
of the employee's total compensation, including base pay or salary and any
bonuses or commissions.
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Article 9 - Change in Payroll Deductions.
Deductions may not be increased or decreased during a Payment Period.
However, an employee may withdraw in full from the Plan.
Article 10 - Withdrawal from the Plan
An eligible employee may withdraw from the Plan in whole but not in
part, at any time prior to the last business day of each Payment Period by
delivering a withdrawal notice to the Company, in which event the Company will
promptly refund the entire balance of the employee's deductions not previously
used to purchase stock under the Plan.
To re-enter the Plan, an eligible employee who has previously withdrawn
must file a new authorization at least ten (10) days before the beginning date
of the next Payment Period. The employee's re-entry into the Plan cannot,
however, become effective before the beginning of the next Payment Period
following his/her withdrawal.
Article 11 - Issuance of Stock.
Certificates for stock issued to participants will be delivered as soon
as practicable after each Payment Period by the Company's transfer agent. Stock
purchased under the Plan will be issued only in the name of the employee, or if
his/her authorization so specifies, in the name of the employee and another
person of legal age as joint tenants with rights of survivorship.
Article 12 - Adjustments.
Upon the happening of any of the following described events, an
optionee's rights under options granted under the Plan shall be adjusted as
hereinafter provided.
A. In the event shares of Common Stock of the Company shall be
subdivided or combined into a greater or smaller number of shares or if, upon a
reorganization, split-up, liquidation, recapitalization or the like of the
Company, the shares of the Company's Common Stock shall be exchanged for other
securities of the Company, each optionee shall be entitled, subject to the
conditions herein stated, to purchase such number of shares of Common Stock or
amount of other securities of the Company as were exchangeable for the number of
shares of Common Stock of the Company which such optionee would have been
entitled to purchase except for such action, and appropriate adjustments shall
be made in the purchase price per share to reflect such subdivision, combination
or exchange; and
B. In the event the Company shall issue any of its shares as a stock
dividend upon or with respect to the shares of stock of the class which shall at
the time be subject to option hereunder, each optionee upon exercising such an
option shall be entitled to
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receive (for the purchase price paid upon such exercise) the shares as to which
he/she is exercising his/her option and, in addition thereto (at no additional
cost), such number of shares of the class or classes in which such stock
dividend or dividends were declared or paid, and such amount of cash in lieu of
fractional shares, as is equal to the number of shares thereof and the amount of
cash in lieu of fractional shares, respectively, which he/she would have
received if he/she had been the holder of the shares as to which he/she is
exercising his/her option at all times between the date of the granting of such
option and the date of its exercise.
Upon the happening of any of the foregoing events, the class and
aggregate number of shares set forth in Article 4 hereof which are subject to
options which have been or may be granted under the Plan and the limitations set
forth in the second paragraph of Article 5 shall also be appropriately adjusted
to reflect the events specified in paragraphs A and B above. Notwithstanding the
foregoing, any adjustments made pursuant to paragraphs A and B shall be made
only to the extent that the Committee, based on advice of counsel for the
Company, determines that such adjustments will not constitute a change requiring
stockholder approval under Section 423(b)(2) of the Code.
If the Company is to be consolidated with or acquired by another entity
in a merger, a sale of all or substantially all of the Company's assets or
otherwise (an "Acquisition"), the Committee shall, with respect to options then
outstanding under this Plan, either (i) make appropriate provision for the
continuation of such options by arranging for the substitution on an equitable
basis for the shares then subject to such options the consideration payable with
respect to the outstanding shares of the Company's Common Stock in connection
with the Acquisition or (ii) terminate all outstanding options in exchange for a
cash payment equal to the excess of the fair market value of the shares subject
to the options (determined as of the date of the Acquisition) over the Option
Price thereof (determined with reference only to the first business day of the
applicable Payment Period).
The Committee or Board of Directors shall determine the adjustments to
be made under this Article 12, and its determination shall be conclusive.
Article 13 - No Transfer or Assignment of Employee's Rights.
An employee's rights under the Plan are the employee's alone and may
not be transferred or assigned to, or availed of by, any other person other than
by will or the laws of descent and distribution. Any option granted under the
Plan to an employee may be exercised, during the employee's lifetime, only by
the employee.
Article 14 - Termination of Employee's Rights.
An employee's rights under the Plan will terminate when he/she ceases
to be an employee because of retirement, voluntary or involuntary termination,
resignation, lay-off, discharge, death, change of status or for any other
reason, except that if an employee is on
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a leave of absence from work during the last three months of any Payment Period,
he/she shall be deemed to be a participant in the Plan on the last day of that
Payment Period. A withdrawal notice will be considered as having been received
from the employee on the day his/her employment ceases, and all payroll
deductions not used to purchase stock will be refunded without interest.
If an employee's payroll deductions are interrupted by any legal
process, a withdrawal notice will be considered as having been received from the
employee on the day the interruption occurs.
Article 15 - Termination and Amendments to Plan.
Unless terminated sooner as provided below, the Plan shall terminate on
December 31, 2007. The Plan may be terminated at any time by the Company's Board
of Directors but such termination shall not affect options then outstanding
under the Plan. It will terminate in any case when all or substantially all of
the unissued shares of stock reserved for the purposes of the Plan have been
purchased. If at any time shares of stock reserved for the purpose of the Plan
remain available for purchase but not in sufficient number to satisfy all then
unfilled purchase requirements, the available shares shall be apportioned among
participants in proportion to their options and the Plan shall terminate. Upon
such termination or any other termination of the Plan, all payroll deductions
not used to purchase stock will be refunded without interest. The Committee or
the Board of Directors may from time to time adopt amendments to the Plan
provided that, without the approval of the stockholders of the company, no
amendment may (i) increase the number of shares that may be issued under the
Plan or change the class of employees eligible to receive options under the Plan
or (ii) cause Rule 16b-3 under the Securities and Exchange Act of 1934 to become
inapplicable to the Plan.
Article 16 - Limits on Sale of Stock Purchased Under the Plan.
The Plan is intended to provide shares of Common stock for investment
and not for resale. The Company does not, however, intend to restrict or
influence any employee in the conduct of his/her own affairs. An employee may,
therefore, sell stock purchased under the Plan at any time the employee chooses,
subject to compliance with any applicable Federal or state securities laws;
provided, however, that because of certain Federal tax requirements, each
employee agrees by entering the Plan, promptly to give the Company notice of any
such stock disposed of within two years after the date of grant of the
applicable option showing the number of such shares disposed of. THE EMPLOYEE
ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
Article 17 - Participating Subsidiaries.
The term "participating subsidiary" shall mean any subsidiary of the
Company, as that term is defined in Section 424(f) of the Code, which is
designated from time to time
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by the Board of Directors to participate in the Plan. The Board of Directors
shall have the power to make such designation before or after the Plan is
approved by the stockholders.
Article 18 - Optionees Not Stockholders.
Neither the granting of an option to an employee nor the deductions
from his/her pay shall constitute such employee a stockholder of the shares
covered by an option until such shares have been actually purchased by the
employee.
Article 19 - Application of Funds.
The proceeds received by the Company from the sale of Common Stock
pursuant to options granted under the Plan will be used for general corporate
purposes.
Article 20 - Governmental Regulations.
The Company's obligation to sell and deliver shares of the Company's
Common Stock under this Plan is subject to the approval of any governmental
authority required in connection with the authorization, issuance or sale of
such shares, including the Securities and Exchange Commission and the Internal
Revenue Service.
Article 21 - Approval of Stockholders; Effectiveness.
The Plan, as amended and restated, shall be subject to approval by the
holders of a majority of the shares of the Common Stock of the Company present
or represented by proxy at a duly called meeting of stockholders, which approval
must occur by October 1, 1998.
Date Plan adopted by Board of Directors; June 25, 1990
Date Plan approved by Stockholders: June 26, 1990
Date Plan amended by Board of Directors: October 31, 1990
Date Plan amended by Board of Directors: January 6, 1995
Date Plan approved by Stockholders: February 21, 1995
Date Plan amended by Board of Directors: November 13, 1997
Date Plan approved by Stockholders: February 3, 1998
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