<PAGE> 1
As filed with the Securities and Exchange Commission on March 29, 1999.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
-------------------------
PEOPLESOFT, INC.
(Exact name of Registrant as specified in its charter)
- --------------------------------------------------------------------------------
<TABLE>
<S> <C>
DELAWARE 68-0137069
(State of Incorporation) (I.R.S. Employee Identification No.)
- ------------------------ ------------------------------------
</TABLE>
4460 Hacienda Drive
Pleasanton, CA 94588
(Address of principal executive offices)
-------------------------
AMENDED AND RESTATED 1989 STOCK PLAN
1992 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
-------------------------
David A. Duffield
Chairman, President and Chief Executive Officer
PEOPLESOFT, INC.
Hacienda Business Park
4460 Hacienda Drive
Pleasanton, CA 94588
(925) 225-3000
(Name, address and telephone number of agent for service)
-------------------------
Copies to:
HENRY P. MASSEY, JR. ESQ.
PETER S. HEINECKE, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
<PAGE> 2
<TABLE>
<CAPTION>
======================================================================================================================
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of Maximum Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Regustered Registered Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value, 16,694,000 shares $ 16.125(2) $ 269,190,750 $ 74,835
to be issued under 1989 Stock
Option Plan
- ----------------------------- -------------------- ----------- ------------- --------
Common Stock, $.01 par value,
to be issued under 1992
Employee Stock Purchase Plan 4,208,000 shares $ 16.125(2) $ 67,854,000 $ 18,863
============================= ==================== =========== ============= ========
Total 20,902,000 shares(1) $ 337,044,750(2) $ 93,698
======================================================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement is the number of
additional shares authorized to be issued under the Amended and Restated
1989 Stock Plan and the 1992 Employee Stock Purchase Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Act") solely for the purpose of calculating the total
registration fee. Computation based upon the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on
March 23, 1999 because the exercise prices for the options to be granted in
the future and the prices at which shares will be purchased in the future
are not currently determinable.
-2-
<PAGE> 3
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The information contained in Registrant's Registration Statement on Form
S-8 (SEC file no. 333-08575) as filed with the Securities and Exchange
Commission on July 19, 1996 is hereby incorporated by reference.
Item 3(a) The Registrant's Annual Report on Form 10-K, file no. 0-20710,
filed on March 30, 1998, which contains audited financial statements for the
Registrant's fiscal year ended December 31, 1997, the latest fiscal year for
which such statements have been filed.
Item 3(b) The Registrant's Quarterly Report on Form 10-Q, file no. 0-20710,
filed on November 16, 1998, which contains the Registrant's unaudited financial
statements as of September 30, 1998.
Item 3(c) The Registrant's Form 8-K, file no. 0-20710, filed on December
18, 1998, which announces the repricing of options with an exercise price above
$22.
ITEM 8 EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Document
- ------- --------
<S> <C>
4.1 Certificate of Amendment to Certificate of Incorporation of Registrant
(filed with the Secretary of State of Delaware on June 25, 1998)
4.2 By-laws of Registrant, as amended to date. (Incorporated by reference
to Exhibit No. 3.5, filed with the Registrant's Annual Report on Form
10-K filed on March 30, 1998)
4.3 Amended and Restated 1989 Stock Plan
4.4 1992 Employee Stock Purchase Plan
4.5 Preferred Shares Rights Agreement, dated as of February 15, 1995
between PeopleSoft, Inc. and The First National Bank of Boston,
Canton, Massachusetts. (Incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement (No. 0-20710) on Form 8-A
filed on February 17, 1995.)
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors (see page 5).
24.1 Consent of Counsel (contained in Exhibit 5.1 hereto).
25.1 Power of Attorney (see page 4).
</TABLE>
-3-
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
PeopleSoft, Inc., a corporation organized and existing under the laws of the
State of Delaware, 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 Pleasanton, State of California, on March 26,
1999.
PEOPLESOFT, INC.
By: /s/ Alfred J. Castino
-------------------------------------
Alfred J. Castino,
Senior Vice President, Finance and
Administration, and Chief Financial
Officer (Principal Financial and
Accounting Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David A. Duffield and Alfred J. Castino, jointly
and severally, his attorneys-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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 and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ David A. Duffield President, Chief Executive Officer March 26, 1999
- ----------------------------- (Principal Executive Officer), and
(David A. Duffield) Director
/s/ Alfred J. Castino Senior Vice President of Finance and March 26, 1999
- ----------------------------- Administration, and Chief Financial
(Alfred J. Castino) Officer (Principal Financial and
Accounting Officer)
/s/ A. George Battle Director March 26, 1999
- -----------------------------
(A. George Battle)
/s/ Albert W. Duffield Director March 26, 1999
- -----------------------------
(Albert W. Duffield)
/s/ George J. Still Jr. Director March 26, 1999
- -----------------------------
(George J. Still, Jr.)
/s/ Edgar F. Codd Director March 26, 1999
- -----------------------------
(Edgar F. Codd)
/s/ Cyril J. Yansouni Director March 26, 1999
- -----------------------------
(Cyril J. Yansouni)
/s/ Aneel Bhusri Director March 26, 1999
- -----------------------------
(Aneel Bhusri)
</TABLE>
-4-
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Document
- ------- --------
<S> <C>
4.1 Certificate of Amendment to Certificate of Incorporation of Registrant
(filed with the Secretary of State of Delaware on June 25, 1998)
4.2 By-laws of Registrant, as amended to date. (Incorporated by reference
to Exhibit No. 3.5, filed with the Registrant's Annual Report on Form
10-K filed on March 30, 1998)
4.3 Amended and Restated 1989 Stock Plan
4.4 1992 Employee Stock Purchase Plan
4.5 Preferred Shares Rights Agreement, dated as of February 15, 1995
between PeopleSoft, Inc. and The First National Bank of Boston,
Canton, Massachusetts. (Incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement (No. 0-20710) on Form 8-A
filed on February 17, 1995.)
5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors (see page 5).
24.1 Consent of Counsel (contained in Exhibit 5.1 hereto).
25.1 Power of Attorney (see page 4).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
PeopleSoft, Inc., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of PeopleSoft, Inc.,
resolutions were duly adopted setting forth a proposed amendment of the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and authorizing and directing the officers and directors of the
corporation to solicit the consent of stockholders of said corporation for
consideration thereof. The resolution setting forth said amendment is as
follows:
RESOLVED: That the Certificate of Incorporation of this corporation be
amended by changing the first paragraph of Article III thereof so that, as
amended said paragraph shall be and read as follows:
"THIRD. The Corporation is authorized to issue two classes of stock to
be designated, respectively, "Common Stock" and "Preferred Stock". The
total number of shares which the corporation is authorized to issue is
Seven Hundred Two Million (702,000,000) shares. Seven Hundred Million
(700,000,000) shares shall be Common Stock and Two Million (2,000,000)
shares shall be Preferred Stock, each with a par value of One Cent
($0.01)."
SECOND: That thereafter, the necessary number of shares of this
corporation's capital stock as required by Section 216 of the General
Corporation Law of Delaware voted in favor of such amendment at the
corporation's Annual Meeting of Stockholders.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, PeopleSoft, Inc. has caused this certificate to be
signed by Ronald E.F. Codd, its Senior Vice President of Finance and
Administration, Chief Financial Officer and Secretary, this 25th day of June,
1998.
/s/ Ronald E.F. Codd
-----------------------------------
Ronald E.F. Codd
Senior Vice President of Finance
and Administration, Chief Financial
Officer and Secretary
<PAGE> 1
Exhibit 4.3
PEOPLESOFT, INC.
AMENDED AND RESTATED 1989 STOCK PLAN
(AS AMENDED ON MAY 26, 1998)
1. Purposes of the Plan. The purposes of this Stock Plan are to attract
and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of
the Company and its Subsidiaries and to promote the success of the Company's
business. Options granted under the Plan may be incentive stock options (as
defined under Section 422 of the Code) or non-statutory stock options, as
determined by the Administrator at the time of grant of an option and subject to
the applicable provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder. Stock purchase rights may also be granted
under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees
appointed pursuant to Section 4 of the Plan.
(b) "Applicable Laws" means the legal requirements relating to the
administration of stock plans under state corporate and securities laws and the
Code.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(dd) "Contingent Worker"describes any person during the period in
which the person renders services to, for or on behalf of the
Company, Parent or Subsidiary under one or more of the following
categories or classifications:
a. Independent Contractor. An "independent contractor" is an
individual (a) whose services are engaged by the Company, Parent
or Subsidiary under a written or oral contract, between the
individual and the Company, Parent or Subsidiary, to perform
specialized tasks, for or on behalf of the Company, Parent or
Subsidiary, which require substantial skill and independent
judgement and (b) whose compensation is not subject to the
withholding of employment or income taxes by the Company, Parent
or Subsidiary under Sections 3121 or 3401 of the Code (other than
back-up withholding under Code Section 3406) but is subject to
reporting by the Company, Parent or Subsidiary, under Code
Section 6041, on IRS Form 1099-MISC or other form for the
reporting of nonemployee compensation.
b. Leased Worker. A "leased worker" is an individual hired by an
employee leasing company and made available to the Company,
Parent or Subsidiary by the leasing company, under a written or
oral contract between the Company, Parent or Subsidiary and the
leasing company, in an arrangement in which the compensation paid
to the individual is subject to the withholding of employment or
income taxes by the leasing company under Sections 3121 or 3401
of the Code. The term "leased worker" includes but is not limited
to persons who provide services to the Company, Parent or
Subsidiary in a joint employment relationship with the leasing
company. Similarly, the term "leased worker" includes but is not
limited to a leased employee within the meaning of Section 414(n)
of the Code.
c. Technical Contractor. A "technical contractor" is an individual
who is a skilled technical worker, such as an engineer or
computer specialist and who is hired by a technical services firm
and made available to the Company, Parent or Subsidiary by the
technical services firm, in an arrangement in which the
compensation paid to the individual is subject to the withholding
of employment or income taxes by the technical
<PAGE> 2
services firm under Sections 3121 or 3401 of the Code or is
subject to reporting by the technical services firm, under Code
Section 6041, on IRS Form 1099-MISC or other form for the
reporting of nonemployee compensation. The term "technical
contractor" includes but is not limited to independent
contractors and leased workers. The term "technical services
firm" includes but is not limited to a leasing company, as
described above, or a firm distinct from the Company, Parent or
Subsidiary under a master vendor program or outsourcing
arrangement, as described below.
d. Master Vendor Worker. A "master vendor worker" is an individual
who renders services to the Company, Parent or Subsidiary under a
master vendor program. A master vendor program is an arrangement
in which a personnel agency or other human resources firm
supplies the Company, Parent or Subsidiary with some or all of
the individuals who, at any time or from time to time, constitute
the temporary work force of the Company, Parent or Subsidiary,
either directly or through other temporary help services, with or
without consolidated billing or invoicing. The compensation paid
to the master vendor worker is subject to the withholding of
employment or income taxes by the personnel agency or human
resources firm under Sections 3121 or 3401 of the Code or is
subject to reporting by the personnel agency or human resources
firm, under Code Section 6041, on IRS Form 1099-MISC or other
form for the reporting of nonemployee compensation. The term
"master vendor worker" includes but is not limited to independent
contractors, leased workers and technical contractors.
e. Outsourcing Organization Worker. An "outsourcing organization
worker" is an individual who renders services to the Company,
Parent or Subsidiary under an outsourcing or managed services
arrangement. An outsourcing or managed services arrangement
exists when a firm, distinct from the Company, Parent or
Subsidiary and with specialized expertise, contracts with the
Company, Parent or Subsidiary not only to provide personnel but
also to assume responsibility for functions not at the core of
the business of the Company, Parent or Subsidiary. Non-core
functions include but are not limited to mail room, reception,
food service, landscaping, and building security or maintenance.
The compensation paid to an outsourcing organization worker is
subject to the withholding of employment or income taxes by the
outsourcing organization or managed services firm under Sections
3121 or 3401 of the Code or is subject to reporting by the
outsourcing organization or managed services firm, under Code
Section 6041, on IRS Form 1099-MISC or other form for the
reporting of nonemployee compensation. The term "outsourcing
organization worker" includes but is not limited to independent
contractors, leased workers, technical contractors and master
vendor workers.
f. Consistent with the terms of the Plan and relevant laws, the
Administrator shall have discretionary authority to determine
which persons who provide services to, for or on behalf of the
Company, Parent or Subsidiary are Contingent Workers excluded
from the categories of Consultant and Employee under the Plan.
(e) "Committee" means the Committee appointed by the Board of
Directors in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means PeopleSoft, Inc., a Delaware corporation.
(h) "Consultant" means any person, including an advisor, who is
engaged by the Company or any Parent or Subsidiary to render services and is
compensated for such services, and any Director of the Company whether
compensated for such services or not provided that if and in the event the
Company registers any class of any equity security pursuant to the Exchange Act,
the term Consultant shall thereafter not include Directors who are not
compensated for their services or are paid only a director's fee by the Company.
(i) "Continuous Status as an Employee or Consultant" means the
absence of any interruption or termination of the employment or consulting
relationship by the Company or any Parent or Subsidiary. Continuous Status as an
Employee or Consultant shall not be considered interrupted in the case of: (i)
sick leave;
<PAGE> 3
(ii) military leave; (iii) any other leave of absence approved by the Board,
provided that such leave is for a period of not more than ninety (90) days,
unless reemployment upon the expiration of such leave is guaranteed by contract
or statute, or unless provided otherwise pursuant to Company policy adopted from
time to time; or (iv) in the case of transfers between locations of the Company
or between the Company, its Subsidiaries or its successor.
(j) "Director" means a member of the Board.
(k) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(l) "Employee" shall mean any person, including Officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company. The term "Employee" does not include any
Contingent Worker even if such contingent workers are reclassified as common-law
employees of the Company, Parent or Subsidiary unless the Administrator selects
the Contingent Worker as a Consultant, within the meaning of Section 2(h)
herein, who shall participate in the Plan. Consistent with the terms of the Plan
and relevant laws, the Administrator shall have discretionary authority to
determine the identity of reclassified Contingent Workers who shall be treated
as Consultants under the Plan and the manner and extent to which such
reclassified Contingent Workers shall participate in the Plan.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(n) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system including without limitation the Nasdaq
National Market of the National Association of Securities Dealers, Inc.
Automated Quotation ("Nasdaq") System, its Fair Market Value shall be the
closing sales price for such stock (or the closing bid, if no sales were
reported, as quoted on such system or exchange or the exchange with the greatest
volume of trading in Common Stock for the last market trading day prior to the
time of determination) as reported in the Wall Street Journal or such other
source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq System (but not
on the Nasdaq National Market thereof) or regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the high and low asked prices for the Common Stock; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(o) "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(p) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(q) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(r) "Option" means a stock option granted pursuant to the Plan.
(s) "Optioned Stock" means the Common Stock subject to an Option.
(t) "Optionee" means an Employee or Consultant who receives an
Option.
(u) "Parent" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code.
<PAGE> 4
(v) "Plan" means this Amended and Restated 1989 Stock Plan.
(w) "Public Company" means the Company when the Company has a class
of equity securities registered under Section 12 of the Exchange Act.
(x) "Purchaser" means an Employee or Consultant who exercises a Stock
Purchase Right.
(y) "Restricted Stock" means shares of Common Stock acquired pursuant
to a grant of Stock Purchase Rights under Section 10 below.
(z) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(aa) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 12 of the Plan.
(bb) "Stock Purchase Right" means a right to purchase Common Stock
pursuant to the Plan or the right to receive a bonus of Common Stock for past
services.
(cc) "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 425(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 12 of
the Plan, the maximum aggregate number of shares which may be optioned and sold
under the Plan is 104,600,000 shares of Common Stock. The shares may be
authorized, but unissued, or reacquired Common Stock. Future annual increases in
the number of shares of Common Stock reserved for issuance under the Option Plan
of 5% of the outstanding shares each year subject to a maximum of 20,000,000
shares.
If an Option or Stock Purchase Right should expire or become
unexercisable for any reason without having been exercised in full, the
unpurchased Shares which were subject thereto shall, unless the Plan shall have
been terminated, become available for future grant under the Plan.
Notwithstanding any other provision of the Plan, shares issued under the Plan
and later repurchased by the Company shall not become available for future grant
or sale under the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. If (A) the Company is not a
Public Company, or (B) the Company is a Public Company and it is permitted by
Rule 16b-3 and by the Applicable Laws, the Plan may (but need not) be
administered by different administrative bodies with respect to Directors,
non-Director Officers, and Employees who are neither Directors nor Officers.
(ii) Administration With Respect to Directors and Officers
Subject to Section 16(b). With respect to Option and Stock Purchase Rights
grants made to Employees or Consultants who are also Officers or Directors when
the Company has a class of equity securities registered under Section 12 of the
Exchange Act (in which case the Company shall be referred to herein as a "Public
Company"), the Plan shall be administered by (A) the Board, if the Board may
administer the Plan in compliance with Rule 16b-3 as it applies to a plan
intended to qualify thereunder as a discretionary plan, or (B) a Committee
designated by the Board to administer the Plan, which Committee shall be
constituted (I) in such a manner as to permit the Plan to comply with Rule 16b-3
as it applies to a plan intended to qualify thereunder as a discretionary plan
and (II) in such a manner as to satisfy the Applicable Laws.
(iii) Administration With Respect to Other Persons. With respect
to Option and Stock Purchase Rights grants made to Employees or Consultants who
are neither Directors nor Officers of the Company and Option grants made when
the Company is not a Public Company, the Plan shall be administered by (A) the
Board or (B) a
<PAGE> 5
Committee designated by the Board, which Committee shall be constituted in such
a manner as to satisfy the Applicable Laws.
(iv) General. Once a Committee has been appointed pursuant to
subsection (ii) or (iii) of this Section 4(a), such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board. From
time to time the Board may increase the size of any Committee and appoint
additional members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies (however caused) and remove
all members of a Committee and thereafter directly administer the Plan, all to
the extent permitted by the Applicable Laws, and, in the case of a Committee
appointed under subsection (ii), to the extent permitted by Rule 16b-3 as it
applies to a plan intended to qualify thereunder as a discretionary plan.
(b) Powers of the Administrator. Subject to the provisions of the
Plan and in the case of a Committee, the specific duties delegated by the Board
to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(m) of the Plan; (ii) to select the Consultants and
Employees to whom Options and Stock Purchase Rights may from time to time be
granted hereunder;
(iii) to determine whether and to what extent Options and Stock
Purchase Rights or any combination thereof, are granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation of any Option or
other award and/or the shares of Common Stock relating thereto, based in each
case on such factors as the Administrator shall determine, in its sole
discretion); and
(vii) to determine the terms and restrictions applicable to Stock
Purchase Rights and the Restricted Stock purchased by exercising such Stock
Purchase Rights.
(c) Effect of Administrator's Decision. All decisions, determinations
and interpretations of the Administrator shall be final and binding on all
Optionees, Purchasers and any other holders of any Options or Stock Purchase
Rights.
5. Eligibility.
(a) Options and Stock Purchase Rights may be granted to Employees and
Consultants, provided that Incentive Stock Options may be granted only to
Employees. An Employee or Consultant who has been granted an Option or Stock
Purchase Right may, if he is otherwise eligible, be granted additional Option(s)
or Stock Purchase Rights.
(b) Each Option shall be designated in the written option agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designations, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Options designated as Incentive Stock
Options are exercisable for the first time by any Optionee during any calendar
year (under all plans of the Company or any Parent or Subsidiary) exceeds
$100,000, such excess Options shall be treated as Nonstatutory Stock Options.
(c) For purposes of Section 5(b), Incentive Stock Options shall be
taken into account in the order in which they were granted, and the Fair Market
Value of the Shares shall be determined as of the time the Option with respect
to such Shares is granted.
<PAGE> 6
(d) The Plan shall not confer upon any Optionee or holder of a Stock
Purchase Right any right with respect to continuation of employment or
consulting relationship with the Company, nor shall it interfere in any way with
his or her right or the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
(e) The following limitations shall apply to grants of Options and
Stock Purchase Rights to Employees:
(i) No Employee shall be granted, in any fiscal year of the
Company, Options and Stock Purchase Rights to purchase more than 250,000 Shares.
(ii) The foregoing limitation shall be adjusted proportionately
in connection with any change in the Company's capitalization as described in
Section 12.
(iii) If an Option or Stock Purchase Right is cancelled (other
than in connection with a transaction described in Section 12), the cancelled
Option or Stock Purchase Right will be counted against the limit set forth in
Section 5(e)(i). For this purpose, if the exercise price of an Option or Stock
Purchase Right is reduced, the transaction will be treated as a cancellation of
the Option or Stock Purchase Right and the grant of a new Option or Stock
Purchase Right.
6. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company as described in Section 18 of the Plan. It shall
continue in effect until March 17, 2008 unless sooner terminated under Section
14 of the Plan.
7. Term of Option. The term of each Option shall be the term stated in
the Option Agreement; provided, however, that in the case of an Incentive Stock
Option or a Nonstatutory Stock Option, the term shall be no more than ten (10)
years from the date of grant thereof or such shorter term as may be provided in
the Option Agreement. However, in the case of an Option granted to an Optionee
who, at the time the Option is granted, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the term of the Option shall be five (5) years from the
date of grant thereof or such shorter term as may be provided in the Option
Agreement.
8. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be such price as is determined by
the Board, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the grant of
such Incentive Stock Option, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant.
(B) granted to any Employee, the per Share exercise price
shall be no less than 100% of the Fair Market Value per Share on the date of
grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of the grant of
such Option, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the
per Share exercise price shall be no less than 110% of the Fair Market Value per
Share on the date of the grant.
(B) granted to any person, the per Share exercise price
shall be no less than 85% of the Fair Market Value per Share on the date of
grant.
<PAGE> 7
(b) Form of Consideration. The consideration to be paid for the
Shares to be issued upon exercise of an Option, including the method of payment,
shall be determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant) and may consist entirely of
(1) cash, (2) check, (3) promissory note, (4) other Shares which (x) in the case
of Shares acquired upon exercise of an Option either have been owned by the
Optionee for more than six months on the date of surrender or were not acquired,
directly or indirectly, from the Company, and (y) have a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised, (5) authorization for the Company to
retain from the total number of Shares as to which the Option is exercised that
number of Shares having a Fair Market Value on the date of exercise equal to the
exercise price for the total number of Shares as to which the Option is
exercised, (6) delivery of a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company the
amount of sale or loan proceeds required to pay the exercise price, (7) delivery
of an irrevocable subscription agreement for the Shares which irrevocably
obligates the option holder to take and pay for the Shares not more than twelve
months after the date of delivery of the subscription agreement, (8) any
combination of the foregoing methods of payment, or (9) such other consideration
and method of payment for the issuance of Shares to the extent permitted under
Applicable Laws. In making its determination as to the type of consideration to
accept, the Board shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Stockholder. Any Option
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator, including performance criteria with respect
to the Company and/or the Optionee, and as shall be permissible under the terms
of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 8(b) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or any
other rights as a stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 12 of the Plan.
Exercise of an Option in any manner shall result in a decrease in
the number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Employment or Consulting Relationship. In the
event of termination of an Optionee's Continuous Status as an Employee or
Consultant with the Company (as the case may be), such Optionee may, but only
within ninety (90) days (or such other period of time of not less than thirty
(30) days as is determined by the Board, with such determination in the case of
an Incentive Stock Option being made at the time of grant of the Option and not
exceeding ninety (90) days) after the date of such termination (but in no event
later than the expiration date of the term of such Option as set forth in the
Option Agreement), exercise his Option to the extent that Optionee was entitled
to exercise it at the date of such termination. To the extent that Optionee was
not entitled to exercise the Option at the date of such termination, or if
Optionee does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions of Section
9(b) above, in the event of termination of an Optionee's Continuous Status as an
Employee or Consultant as a result of Optionee's total and permanent disability.
Optionee may, but only within twelve (12) months from the date of such
termination (but in no event later than the expiration date of the term of such
Option as set forth in the Option Agreement), exercise the Option to the extent
otherwise entitled to exercise it at the date of such termination. To the extent
that Optionee was not entitled to exercise the Option at the date of
termination, or if Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall terminate.
<PAGE> 8
(d) Death of Optionee. In the event of the death of an Optionee, the
Option may be exercised, at any time within twelve (12) months following the
date of death (but in no event later than the expiration date of the term of
such Option as set forth in the Option Agreement), by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent the Optionee was entitled to exercise the
Option at the date of death. To the extent that Optionee was not entitled to
exercise the Option at the date of termination, or if Optionee does not exercise
such Option to the extent so entitled within the time specified herein, the
Option shall terminate.
(e) Rule 16b-3. Options granted to persons subject to Section 16(b)
of the Exchange Act must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
10. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued either
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing of the terms, conditions and restrictions related to the
offer, including the number of Shares that such person shall be entitled to
purchase, the price to be paid (which price shall not be less than 85% of the
Fair Market Value of the Shares as of the date of the offer), and the time
within which such person must accept such offer, which shall in no event exceed
thirty (30) days from the date upon which the Administrator made the
determination to grant the Stock Purchase Right. The offer shall be accepted by
execution of a stock purchase agreement in the form determined by the
Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise,
the stock purchase agreement shall grant the Company a repurchase option
exercisable upon the voluntary or involuntary termination of the Purchaser's
employment or consulting relationship with the Company for any reason (including
death or disability). The purchase price for Shares repurchased pursuant to the
stock purchase agreement shall be the original price paid by the Purchaser or
the Fair Market Value as of the date of bonus in the case of a stock bonus and
may be paid by cancellation of any indebtedness of the Purchaser to the Company.
The repurchase option shall lapse at such rate as the Administrator may
determine.
(c) Other Provisions. The stock purchase agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be
determined by the Administrator in its sole discretion. In addition, the
provisions of stock purchase agreements need not be the same with respect to
each Purchaser.
(d) Rights as a Stockholder. Once the Stock Purchase Right is
exercised, the Purchaser shall have the rights equivalent to those of a
stockholder, and shall be a stockholder when his or her purchase is entered upon
the records of the duly authorized transfer agent of the Company. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the Stock Purchase Right is exercised, except as provided in Section 12
of the Plan.
11. Non-Transferability of Options and Stock Purchase Rights. An Option or
Stock Purchase Right may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee or Purchaser, only by the Optionee or Purchaser.
12. Adjustments Upon Changes in Capitalization or Merger. Subject to any
required action by the stockholders of the Company, the number of shares of
Common Stock covered by each outstanding Option and Stock Purchase Right, and
the number of shares of Common Stock which have been authorized for issuance
under the Plan but as to which no Options or Stock Purchase Rights have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option or Stock Purchase Right, as well as the price per share of Common
Stock covered by each such outstanding Option or Stock Purchase Right, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse
<PAGE> 9
stock split, stock dividend, combination or reclassification of the Common
Stock, or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no
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
of Common Stock subject to an Option or Stock Purchase Right.
In the event of the proposed dissolution or liquidation of the
Company, the Board shall notify the Optionee at least fifteen (15) days prior to
such proposed action. To the extent it has not been previously exercised, the
Option will terminate immediately prior to the consummation of such proposed
action. In the event of a merger of the Company with or into another
corporation, the Option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation. With respect to any Option granted prior to January 4,
1992, in the event that such successor corporation refuses to assume such Option
or to substitute an equivalent option, the Board shall, in lieu of such
assumption or substitution, provide for the Optionee to have the right to
exercise such Option as to all of the Optioned Stock, including Shares as to
which such Option would not otherwise be exercisable. If the Board makes an
Option fully exercisable in lieu of assumption or substitution in the event of a
merger, the Board shall notify the Optionee that the Option shall be fully
exercisable for a period of fifteen (15) days from the date of such notice, and
the Option shall terminate upon the expiration of such period. For the purposes
of this paragraph, the Option shall be considered assumed if, following the
merger or sale of assets, the Option confers the right to purchase or receive,
for each Share of Optioned Stock subject to the Option immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders of
Common Stock for each Share held on the effective date of the transaction (and
if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares).
13. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Board. Notice
of the determination shall be given to each Employee or Consultant to whom an
Option is so granted within a reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or discontinue the Plan, but no amendment, alteration, suspension
or discontinuation shall be made which would impair the rights of any Optionee
or Purchaser under any grant theretofore made, without his or her consent. In
addition, to the extent necessary and desirable to comply with Rule 16b-3 under
the Exchange Act or with Section 422 of the Code (or any other applicable law or
regulation, including the requirements of the NASD or an established stock
exchange), the Company shall obtain stockholder approval of any Plan amendment
in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not adversely affect Options or Stock Purchase
Rights already granted and such Options or Stock Purchase Rights shall remain in
full force and effect as if this Plan had not been amended or terminated, unless
mutually agreed otherwise between the Optionee or Purchaser and the Board, which
agreement must be in writing and signed by the Optionee or Purchaser and the
Company.
15. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option or Stock Purchase Rights unless the
exercise of such Option or Stock Purchase Rights and the issuance and delivery
of such Shares pursuant thereto shall comply with all relevant provisions of
law, including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the Shares may then be listed, and
shall be further subject to the approval of counsel for the Company with respect
to such compliance.
As a condition to the exercise of an Option or Stock Purchase Rights,
the Company may require the person exercising such Option or Stock Purchase
Rights to represent and warrant at the time of any such exercise
<PAGE> 10
that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
16. Reservation of Shares. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
17. Agreements. Options and Stock Purchase Rights shall be evidenced by
written agreements in such form as the Board shall approve from time to time.
18. Stockholder Approval. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained
in the degree and manner required under applicable state and federal law.
19. Information to Optionees. The Company shall provide to each Optionee
and Purchaser, during the period for which such Optionee or Purchaser has one or
more Options or Stock Purchase Rights outstanding, copies of all annual reports
and other information which are provided to all stockholders of the Company. The
Company shall not be required to provide such information to key employees whose
duties in connection with the Company assure their access to equivalent
information.
<PAGE> 1
EXHIBIT 4.4
PEOPLESOFT, INC.
1992 EMPLOYEE STOCK PURCHASE PLAN
(As amended on May 26, 1998)
The following constitute the provisions of the 1992 Employee Stock Purchase
Plan of PeopleSoft, Inc.
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company. It is the intention of the Company to have the Plan
qualify as an "Employee Stock Purchase Plan" under Section 423 of the Internal
Revenue Code of 1986, as amended. The provisions of the Plan shall, accordingly,
be construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Common Stock" shall mean the Common Stock, $0.01 par value, of
the Company.
(d) "Company" shall mean PeopleSoft, a Delaware corporation.
(e) "Compensation" shall mean all regular straight time gross
earnings and sales commissions, including payments for overtime, shift premiums,
bonuses, and other cash compensation, but excluding all tax gross-up or expense
reimbursement amounts paid to participants.
(f) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of a leave of absence
agreed to in writing by the Company, provided that such leave is for a period of
not more than 90 days or reemployment upon the expiration of such leave is
guaranteed by contract or statute.
(g) "Contributions" shall mean all amounts credited to the account of
a participant pursuant to the Plan.
(h) "Designated Subsidiaries" shall mean the subsidiaries which have
been designated by the Board, from time to time, in its sole discretion as
eligible to participate in the Plan. Effective as of January 1, 1998, the term
Designated Subsidiaries shall include PeopleSoft USA,Inc., a California
corporation.
(i) Effective as of January 1, 1997, "Employee" shall mean any
person, including an officer, who is customarily employed for at least twenty
(20) hours per week and more than five (5) months in a calendar year by the
Company or one of its Designated Subsidiaries. Pursuant to Treasury Regulations
Section 1.421-7(h), the determination of whether a person is an Employee shall
be made in accordance with the rules and principles contained in Code Section
3401 and the regulations thereunder regarding persons on the domestic or foreign
payroll of the Company and its Designated Subsidiaries. The term "Employee" does
not include any Contingent Worker. Consistent with the terms of the Plan and
relevant laws, the Plan Administrator shall have discretionary authority to
determine which service-providers shall be treated as Employees under the Plan
and to decide all other questions regarding the application, operation and
administration of the Plan.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(k) "Exercise Date" shall mean the last day of each Offering Period
of the Plan.
(l) "Offering Date" shall mean the first business day of each
Offering Period of the Plan, except that in the case of an individual who
becomes an eligible Employee after the first business day of an Offering
<PAGE> 2
Period but prior to the first business day of the last calendar quarter of such
Offering Period, the term "Offering Date" shall mean the first business day of
the calendar quarter coinciding with or next succeeding the day on which that
individual becomes an eligible Employee.
Options granted after the first business day of an Offering
Period will be subject to the same terms as the options granted on the first
business day of such Offering Period except that they will have a different
grant date (thus, potentially, a different exercise price) and, because they
expire at the same time as the options granted on the first business day of such
Offering Period, a shorter term.
(m) "Offering Period" shall mean a period of six (6) months.
(n) "Plan" shall mean this Employee Stock Purchase Plan.
(o) "Plan Administrator" means the Board or committee named by the
Board under Section 13 below.
(p) "Subsidiary" shall mean a corporation, domestic or foreign, of
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
(q) The term "Contingent Worker" describes any person during the
period in which the person (i) renders services to, for or on behalf of the
Company or a Designated Subsidiary under one or more of the following categories
or classifications and (ii) is not an employee pursuant to Code Section 3121(d)
or Revenue Ruling 87-41:
a. Independent Contractor. An "independent contractor" is an
individual (a) whose services are engaged by the Company or
Designated Subsidiary under a written or oral contract,
between the individual and the Company or Designated
Subsidiary, to perform specialized tasks, for or on behalf
of the Company or Designated Subsidiary, which require
substantial skill and independent judgement and (b) whose
compensation is not subject to the withholding of employment
or income taxes by the Company or Designated Subsidiary
under Sections 3121 or 3401 of the Code (other than back-up
withholding under Code Section 3406) but is subject to
reporting by the Company or Designated Subsidiary, under
Code Section 6041, on IRS Form 1099-MISC or other form for
the reporting of nonemployee compensation.
b. Leased Worker. A "leased worker" is an individual hired by
an employee leasing company and made available to the
Company or Designated Subsidiary by the leasing company,
under a written or oral contract between the Company or
Designated Subsidiary and the leasing company, in an
arrangement in which the compensation paid to the individual
is subject to the withholding of employment or income taxes
by the leasing company under Sections 3121 or 3401 of the
Code. The term "leased worker" includes but is not limited
to a leased employee within the meaning of Section 414(n) of
the Code.
c. Technical Contractor. A technical contractor" is an
individual who is a skilled technical worker, such as an
engineer or computer specialist and who is hired by a
technical services firm and made available to the Company or
Designated Subsidiary by the technical services firm, in an
arrangement in which the compensation paid to the individual
<PAGE> 3
is subject to the withholding of employment or income taxes
by the technical services firm under Sections 3121 or 3401
of the Code or is subject to reporting by the technical
services firm, under Code Section 6041, on IRS Form
1099-MISC or other form for the reporting of nonemployee
compensation. The term "technical contractor" includes but
is not limited to independent contractors and leased
workers. The term "technical services firm" includes but is
not limited to a leasing company, as described above, or
another firm distinct from the Company or Designated
Subsidiary under a master vendor program or outsourcing
arrangement, as described below.
d. Master Vendor Worker. A "master vendor worker" is an
individual who renders services to the Company or Designated
Subsidiary under a master vendor program. A master vendor
program is an arrangement in which a personnel agency or
other human resources firm supplies the Company or
Designated Subsidiary with some or all of the individuals
who, at any time or from time to time, constitute the
temporary work force of the Company or Designated
Subsidiary, either directly or through other temporary help
services, with or without consolidated billing or invoicing.
The compensation paid to the master vendor worker is subject
to the withholding of employment or income taxes by the
personnel agency or human resources firm under Sections 3121
or 3401 of the Code or is subject to reporting by the
personnel agency or human resources firm, under Code Section
6041, on IRS Form 1099-MISC or other form for the reporting
of nonemployee compensation. The term "master vendor worker"
includes but is not limited to independent contractors,
leased workers and technical contractors.
e. Outsourcing Organization Worker. An "outsourcing
organization worker" is an individual who renders services
to the Company or Designated Subsidiary under an outsourcing
or managed services arrangement. An outsourcing or managed
services arrangement exists when a firm, distinct from the
Company or Designated Subsidiary and with specialized
expertise, contracts with the Company or Designated
Subsidiary not only to provide personnel but also to assume
responsibility for functions not at the core of the business
of the Company or Designated Subsidiary. Non-core functions
include but are not limited to mail room, reception, food
service, landscaping, and building security or maintenance.
The compensation paid to an outsourcing organization worker
is subject to the withholding of employment or income taxes
by the outsourcing organization or managed services firm
under Sections 3121 or 3401 of the Code or is subject to
reporting by the outsourcing organization or managed
services firm,under Code Section 6041, on IRS Form 1099-MISC
or other form for the reporting of nonemployee compensation.
The term "outsourcing organization worker" includes but is
not limited to independent contractors, leased workers,
technical contractors and master vendor workers.
f. Consistent with the terms of the Plan and relevant laws, the
Plan Administrator shall have discretionary authority to
determine which persons who provide services to, for or on
behalf of the Company or Designated Subsidiary are
Contingent Workers excluded from the category of Employee
under the Plan.
<PAGE> 4
3. Eligibility.
(a) Any person who has been continuously employed as an Employee for
one (1) month as of the Offering Date of a given Offering Period shall be
eligible to participate in such Offering Period under the Plan, provided that
such person was not eligible to participate in such Offering Period as of any
prior Offering Date, and further, subject to the requirements of Section 5(a)
and the limitations imposed by Section 423(b) of the Code. With respect to the
initial Offering Period only, any person who was employed as an Employee as of
November 1, 1992 shall be eligible to participate in such initial Offering
Period under the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted an option under the Plan (i) if, immediately after the
grant, such Employee (or any other person whose stock would be attributed to
such Employee pursuant to Section 424(d) of the Code) would own stock and/or
hold outstanding options to purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all classes of stock of the
Company or of any subsidiary of the Company, or (ii) if such option would permit
his or her rights to purchase stock under all employee stock purchase plans
(described in Section 423 of the Code) of the Company and its Subsidiaries to
accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) of fair
market value of such stock (determined at the time such option is granted) for
each calendar year in which such option is outstanding at any time.
4. Offering Periods. The Plan shall be implemented by a series of
Offering Periods, with new Offering Periods commencing on or about January 1 and
July 1 of each year (or at such other time or times as may be determined by the
Board of Directors). The first Offering Period shall commence on January 1, 1993
or on such other date the Board shall determine. The Plan shall continue until
terminated in accordance with Section 19 hereof. The Board of Directors of the
Company shall have the power to change the duration and/or the frequency of
Offering Periods with respect to future offerings without stockholder approval
if such change is announced at least fifteen (15) days prior to the scheduled
beginning of the first Offering Period to be affected.
5. Participation.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement on the form provided by the Company and
filing it with the Company's Office of Human Resources prior to the applicable
Offering Date, unless a later time for filing the subscription agreement is set
by the Board for all eligible Employees with respect to a given offering. The
subscription agreement shall set forth the percentage of the participant's
Compensation (which shall be not less than 1% and not more than 10%) to be paid
as Contributions pursuant to the Plan.
(b) Payroll deductions shall commence on the first payroll following
the Offering Date and shall end on the last payroll paid on or prior to the
Exercise Date of the offering to which the subscription agreement is applicable,
unless sooner terminated by the participant as provided in Section 10.
6. Method of Payment of Contributions.
(a) The participant shall elect to have payroll deductions made on
each payday during the Offering Period in an amount not less than one percent
(1%) and not more than ten percent (10%) of such participant's Compensation on
each such payday; provided that the aggregate of such payroll deductions during
the Offering Period shall not exceed ten percent (10%) of the participant's
aggregate Compensation during said Offering Period. All payroll deductions made
by a participant shall be credited to his or her account under the Plan. A
participant may not make any additional payments into such account.
(b) A participant may discontinue his or her participation in the
Plan as provided in Section 10, or, on one occasion only during the Offering
Period, may increase or decrease the rate of his or her Contributions during the
Offering Period by completing and filing with the Company a new subscription
agreement. The change in rate shall be effective as of the beginning of the
calendar quarter following the date of filing of the new subscription agreement.
(c) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and Section 3(b) herein, a participant's
payroll deductions may be decreased to 0% at such time during
<PAGE> 5
any Offering Period which is scheduled to end during the current calendar year
that the aggregate of all payroll deductions accumulated with respect to such
Offering Period and any other Offering Period ending within the same calendar
year equal $21,250. Payroll deductions shall re-commence at the rate provided in
such participant's Subscription Agreement at the beginning of the first Offering
Period which is scheduled to end in the following calendar year, unless
terminated by the participant as provided in Section 10.
7. Grant of Option.
(a) On the Offering Date of each Offering Period, each eligible
Employee participating in such Offering Period shall be granted an option to
purchase on the Exercise Date a number of shares of the Company's Common Stock
determined by dividing such Employee's Contributions accumulated prior to such
Exercise Date and retained in the participant's account as of the Exercise Date
by the lower of (i) eighty-five percent (85%) of the fair market value of a
share of the Company's Common Stock on the Offering Date, or (ii) eighty-five
percent (85%) of the fair market value of a share of the Company's Common Stock
on the Exercise Date; provided however, that the maximum number of shares an
Employee may purchase during each Offering Period shall be determined at the
Offering Date by dividing $12,500 by the fair market value of a share of the
Company's Common Stock on the Offering Date, and provided further that such
purchase shall be subject to the limitations set forth in Sections 3(b) and 12.
The fair market value of a share of the Company's Common Stock shall be
determined as provided in Section 7(b).
(b) The option price per share of the shares offered in a given
Offering Period shall be the lower of: (i) 85% of the fair market value of a
share of the Common Stock of the Company on the Offering Date; or (ii) 85% of
the fair market value of a share of the Common Stock of the Company on the
Exercise Date. The fair market value of the Company's Common Stock on a given
date shall be determined by the Board in its discretion based on the closing
price of the Common Stock for such date (or, in the event that the Common Stock
is not traded on such date, on the immediately preceding trading date), as
reported by the National Association of Securities Dealers Automated Quotation
(NASDAQ) National Market System or, if such price is not reported, the mean of
the bid and asked prices per share of the Common Stock as reported by NASDAQ or,
in the event the Common Stock is listed on a stock exchange, the fair market
value per share shall be the closing price on such exchange on such date (or, in
the event that the Common Stock is not traded on such date, on the immediately
preceding trading date), as reported in The Wall Street Journal. For the initial
Offering Period only, the fair market value per share on the Offering Date shall
be the initial offering price of the Company's shares of Common Stock to the
public as indicated in the Company's final prospectus in connection with such
offering and as such price is negotiated between the Company and the managing
underwriters.
8. Exercise of Option. Unless a participant withdraws from the Plan as
provided in paragraph 10, his or her option for the purchase of shares will be
exercised automatically on the Exercise Date of the Offering Period, and the
maximum number of full shares subject to option will be purchased at the
applicable option price with the accumulated Contributions in his or her
account. No fractional shares shall be purchased; any payroll deductions
accumulated in a participant's account which are not sufficient to purchase a
full share shall be retained in such participant's account for the subsequent
offering period, subject to earlier withdrawal by such participant subject to
Section 10 hereof. Any other monies left over in such participant's account
after the Exercise Date shall be returned to such participant. The shares
purchased upon exercise of an option hereunder shall be deemed to be transferred
to the participant on the Exercise Date. During his or her lifetime, a
participant's option to purchase shares hereunder is exercisable only by him or
her.
9. Delivery. As promptly as practicable after the Exercise Date of each
Offering Period, the Company shall arrange the delivery to each participant, as
appropriate, of a certificate representing the shares purchased upon exercise of
his or her option.
10. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all the
Contributions credited to his or her account under the Plan at any time prior to
the Exercise Date of the Offering Period by giving written notice to the
Company. All of the participant's Contributions credited to his or her account
will be paid to him or her promptly after receipt of his or her notice of
withdrawal and his or her option for the current period will be
<PAGE> 6
automatically terminated, and no further Contributions for the purchase of
shares will be made during the Offering Period.
(b) Upon termination of the participant's Continuous Status as an
Employee prior to the Exercise Date of the Offering Period for any reason,
including retirement or death, the Contributions credited to his or her account
will be returned to him or her or, in the case of his or her death, to the
person or persons entitled thereto under Section 14, and his or her option will
be automatically terminated.
(c) In the event an Employee fails to remain in Continuous Status as
an Employee of the Company for at least twenty (20) hours per week during the
Offering Period in which the employee is a participant, he or she will be deemed
to have elected to withdraw from the Plan and the Contributions credited to his
or her account will be returned to him or her and his or her option terminated.
(d) A participant's withdrawal from an offering will not have any
effect upon his or her eligibility to participate in a succeeding offering or in
any similar plan which may hereafter be adopted by the Company.
11. Interest. No interest shall accrue on the Contributions of a
participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 6,700,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in Section 18. Future annual increases in the number of shares of Common Stock
reserved for issuance under the Purchase Plan such that the number reserved but
unisssued shares equals one and one half percent (1.5%) of the number of shares
of Common Stock issued and outstanding on the last day of the immediately
preceding fiscal year.
If the total number of shares which would otherwise be subject to
options granted pursuant to Section 7(a) on the Offering Date of an Offering
Period exceeds the number of shares then available under the Plan (after
deduction of all shares for which options have been exercised or are then
outstanding), the Company shall make a pro rata allocation of the shares
remaining available for option grant in as uniform a manner as shall be
practicable and as it shall determine to be equitable. In such event, the
Company shall give written notice of such reduction of the number of shares
subject to the option to each Employee affected thereby and shall similarly
reduce the rate of Contributions, if necessary.
(b) The participant will have no interest or voting right in shares
covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a participant under the Plan will be
registered in the name of the participant or in the name of the participant and
his or her spouse.
13. Administration. The Board, or a committee named by the Board, shall
supervise and administer the Plan and shall have full power to adopt, amend and
rescind any rules deemed desirable and appropriate for the administration of the
Plan and not inconsistent with the Plan, to construe and interpret the Plan, and
to make all other determinations necessary or advisable for the administration
of the Plan. The composition of the committee shall be in accordance with the
requirements to obtain or retain any available exemption from the operation of
Section 16(b) of the Exchange Act pursuant to Rule 16b-3 promulgated thereunder.
14. Designation of Beneficiary.
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account under
the Plan in the event of such participant's death subsequent to the end of the
Offering Period but prior to delivery to him or her of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to the Exercise Date of the Offering Period.
If a participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
<PAGE> 7
(b) Such designation of beneficiary may be changed by the participant
(and his or her spouse, if any) at any time by written notice. In the event of
the death of a participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participant's death,
the Company shall deliver such shares and/or cash to the executor or
administrator of the estate of the participant, or if no such executor or
administrator has been appointed (to the knowledge of the Company), the Company,
in its discretion, may deliver such shares and/or cash to the spouse or to any
one or more dependents or relatives of the participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as the
Company may designate.
15. Transferability. Neither Contributions credited to a participant's
account nor any rights with regard to the exercise of an option or to receive
shares under the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way (other than by will, the laws of descent and
distribution, or as provided in Section 14) by the participant. Any such attempt
at assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Section 10.
16. Use of Funds. All Contributions received or held by the Company under
the Plan may be used by the Company for any corporate purpose, and the Company
shall not be obligated to segregate such Contributions.
17. Reports. Individual accounts will be maintained for each participant
in the Plan. Statements of account will be given to participating Employees
promptly following the Exercise Date, which statements will set forth the
amounts of Contributions, the per share purchase price, the number of shares
purchased and the remaining cash balance, if any.
18. Adjustments Upon Changes in Capitalization. Subject to any required
action by the stockholders of the Company, the number of shares of Common Stock
covered by each option under the Plan which has not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but have not yet been placed under option (collectively, the
"Reserves"), as well as the price per share of Common Stock covered by each
option under the Plan which has not yet been exercised, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue by the Company of shares of stock
of any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each option under the
Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Board determines, in the exercise of its sole discretion and in lieu
of such assumption or substitution, to shorten the Offering Period then in
progress by setting a new Exercise Date (the "New Exercise Date"). If the Board
shortens the Offering Period then in progress in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
each participant in writing, at least ten (10) days prior to the New Exercise
Date, that the Exercise Date for his or her option has been changed to the New
Exercise Date and that his or her option will be exercised automatically on the
New Exercise Date, unless prior to such date he or she has withdrawn from the
Offering Period as provided in Section 10. For purposes of this paragraph, an
option granted under the Plan shall be deemed to be assumed if, following the
sale of assets or merger, the option confers the right to purchase, for each
share of option stock subject to the option immediately prior to the sale of
assets or merger, the consideration (whether stock, cash or other securities or
property) received in the sale of assets or merger by holders of Common Stock
for each share of Common Stock held on the effective date of the transaction
(and if such holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
Common Stock); provided, however, that if such consideration received in the
sale of assets or merger was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the Code), the Board
may, with the consent of the successor corporation and the participant, provide
for the consideration to be received upon exercise of the
<PAGE> 8
option to be solely common stock of the successor corporation or its parent
equal in fair market value to the per share consideration received by holders of
Common Stock and the sale of assets or merger.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserves, as well as the price per share
of Common Stock covered by each outstanding option, in the event that the
Company effects one or more reorganizations, recapitalizations, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any other
corporation.
19. Amendment or Termination.
(a) The Board of Directors of the Company may at any time terminate
or amend the Plan. Except as provided in Section 18, no such termination may
affect options previously granted, nor may an amendment make any change in any
option theretofore granted which adversely affects the rights of any
participant. In addition, to the extent necessary to comply with Rule 16b-3
under the Exchange Act, or under Section 423 of the Code (or any successor rule
or provision or any applicable law or regulation), the Company shall obtain
stockholder approval in such a manner and to such a degree as so required.
(b) Without stockholder consent and without regard to whether any
participant rights may be considered to have been adversely affected, the Board
(or its committee) shall be entitled to change the Offering Periods, limit the
frequency and/or number of changes in the amount withheld during an Offering
Period, establish the exchange ratio applicable to amounts withheld in a
currency other than U.S. dollars, permit payroll withholding in excess of the
amount designated by a participant in order to adjust for delays or mistakes in
the Company's processing of properly completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting
procedures to ensure that amounts applied toward the purchase of Common Stock
for each participant properly correspond with amounts withheld from the
participant's Compensation, and establish such other limitations or procedures
as the Board (or its committee) determines in its sole discretion advisable
which are consistent with the Plan.
20. Notices. All notices or other communications by a participant to the
Company under or in connection with the Plan shall be deemed to have been duly
given when received in the form specified by the Company at the location, or by
the person, designated by the Company for the receipt thereof.
21. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
22. Term of Plan; Effective Date. The Plan shall become effective upon the
earlier to occur of its adoption by the Board of Directors or its approval by
the stockholders of the Company. It shall continue in effect for a term of
twenty (20) years unless sooner terminated under Section 19.
23. Additional Restrictions of Rule 16b-3. The terms and conditions of
options granted hereunder to, and the purchase of shares by, persons subject to
Section 16 of the Exchange Act shall comply with the applicable provisions of
Rule 16b-3. This Plan shall be deemed to contain, and such options shall
contain, and the shares issued upon exercise thereof shall be subject to, such
additional conditions and restrictions as may be required by Rule 16b-3 to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
<PAGE> 1
EXHIBIT 5.1
March 29, 1999
PeopleSoft, Inc.
Hacienda Business Park
4460 Hacienda Drive
Pleasanton, CA 94588
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with
the Securities and Exchange Commission on or about March 29, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an additional 20,902,000 shares of your
Common Stock (the "Shares") reserved for issuance under the Amended and Restated
1989 Stock Plan and the 1992 Employee Stock Purchase Plan (collectively, the
"Plans"). As legal counsel for PeopleSoft, Inc., we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the sale and issuance of the Shares under the Plans.
It is our opinion that, when issued and sold in the manner referred to in the
Plans and pursuant to the respective agreement which accompanies each grant
under the Plans, the Shares will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement and any amendments to it.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-3 No. 33-80755, No. 333-20555, and No. 333-36951) of PeopleSoft, Inc. and in
the related Prospectuses and in the Registration Statements (Form S-8)
pertaining to the Amended and Restated 1989 Stock Plan, the 1992 Directors'
Plan, the Amended and Restated 1992 Employee Stock Purchase Plan of PeopleSoft,
Inc., the Red Pepper Software Company 1993 stock option plan and the Intrepid
Systems, Inc. 1992 stock option plan, of our report dated January 26, 1999, with
respect to the consolidated financial statements of PeopleSoft, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1998 filed with
the Securities and Exchange Commission.
Ernst & Young LLP
Walnut Creek, California
March 29, 1999
