<PAGE> 1
As filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 333-91111
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
POST-EFFECTIVE AMENDMENT NO. 2 ON
FORM S-8 TO FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PEOPLESOFT, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware 68-0137069
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
</TABLE>
4460 HACIENDA DRIVE
PLEASANTON, CA 94588
(Address of Principal Executive Offices) (Zip Code)
THE VANTIVE CORPORATION AMENDED AND RESTATED 1991 STOCK OPTION PLAN,
THE VANTIVE CORPORATION 1995 OUTSIDE DIRECTORS STOCK OPTION PLAN,
THE VANTIVE CORPORATION 1997 NONSTATUTORY STOCK OPTION PLAN
INDIVIDUAL OPTION AGREEMENTS GRANTED UNDER THE INNOVATIVE COMPUTER
CONCEPTS, INC. 1995 STOCK INCENTIVE PLAN ASSUMED BY THE VANTIVE CORPORATION
(Full Title of the Plans)
CRAIG CONWAY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PEOPLESOFT, INC.
4460 HACIENDA DRIVE
PLEASANTON, CA 94588
(Name and Address of Agent for Service)
(925) 694-3000
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Kenneth R. Lamb
Peter T. Heilmann
Gibson, Dunn & Crutcher LLP
One Montgomery Street, Telesis Tower
San Francisco, CA 94104
(415) 393-8200
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<PAGE> 2
Explanatory Note
This Post Effective Amendment No. 2 is filed by PeopleSoft, Inc., a
Delaware corporation (the "Registrant" or the "Company"), to correct the
identification of the plans covered by the Registrant's Post Effective Amendment
No. 1 filed with the Securities and Exchange Commission on January 18, 2000.
This Post Effective Amendment No. 2 is filed by the Registrant relating to
4,889,646 shares of its common stock, par value $0.01 per share (the "Common
Stock"), issuable to eligible employees of the Registrant under The Vantive
Corporation Amended and Restated 1991 Stock Option Plan, The Vantive Corporation
1995 Outside Directors Stock Option Plan, The Vantive Corporation 1997
Nonstatutory Stock Option Plan, and the individual option agreements granted
under the Innovative Computer Concepts, Inc. 1995 Stock Incentive Plan assumed
by The Vantive Corporation, each as assumed by the Registrant (collectively, the
"Plans").
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which previously have been filed by the Company
with the Securities and Exchange Commission (the "Commission"), are incorporated
herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(ii) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999;
(iii) The Company's Current Reports on Forms 8-K, filed with the
Commission on June 28, 1999, October 13, 1999 and January 4, 2000;
(iv) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end of the fiscal
year covered by the Annual Report referred to in (i) above;
(v) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the Commission on
October 7, 1992, including any amendment or report filed for the purpose of
updating such description;
(vi) The description of the Company's Preferred Shares Purchase Rights
contained in its Registration Statement on Form 8-A/A filed with the Commission
on March 25, 1998 including any amendment or report filed for the purpose of
updating such description.
<PAGE> 3
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto, which indicates that all securities offered hereunder have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any 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.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933 (the "1933 Act"). As
permitted by the Delaware General Corporation Law, the Company has included in
its Certificate of Incorporation a provision to eliminate the personal liability
of its directors for monetary damages for breach or alleged breach of their
fiduciary duties as directors, subject to certain exceptions. In addition, the
Bylaws of the Company require it to (i) indemnify the officers and directors
under certain circumstances, including those circumstances in which
indemnification would otherwise be discretionary, and (ii) advance expenses to
the officers and directors as incurred in connection with proceedings against
them for which they may be indemnified. The Company has entered into
indemnification agreements with its officers and directors containing provisions
that are in some respects broader than the specific indemnification provisions
contained in the Delaware General Corporation Law. The indemnification
agreements may require the Company, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers (other than liabilities arising
from willful misconduct of a culpable nature), to advance expenses incurred as a
result of any proceeding against them as to which they may be indemnified, and
to obtain directors' and officers' insurance if available on reasonable terms.
The Company believes that these charter provisions and indemnification
agreements are necessary to attract and retain qualified persons as directors
and officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
<PAGE> 4
Item 8. Exhibits
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EXHIBIT
NUMBER EXHIBIT TITLE
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4.1 Restated Certificate of Incorporation of Registrant filed with
the Secretary of State of the State of Delaware on May 24, 1995
(incorporated by reference to Exhibit 4.1 filed with the
Registrant's Form S-8 (No. 333-08575) filed with the Securities
and Exchange Commission on July 22, 1996).
4.2 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State of
Delaware on June 17, 1996 (incorporated by reference to Exhibit
4.2 filed with the Registrant's Form S-8 (No. 333-08575) filed
with the Securities and Exchange Commission on July 22, 1996).
4.3 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State of
Delaware on July 3, 1997 (incorporated by reference to Exhibit
3.3 filed with the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1997).
4.4 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State of
Delaware on June 29, 1998 (incorporated by reference to Exhibit
3.4 filed with the Registrant's Registration Statement on Form
S-4 (No. 333-91111) filed with the Securities and Exchange
Commission on November 17, 1999).
4.5 Certificate of Designation as filed with the Secretary of State
of the State of Delaware on March 24, 1998 (incorporated by
reference to Exhibit 3.4 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.6 Bylaws of Registrant as amended to date (incorporated by
reference to Exhibit 3.5 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1998).
4.7 The description of the Registrant's Common Stock. Reference is
to the Registrant's Registration Statement on Form 8-A, filed
with the Commission on October 7, 1992, incorporated by
reference pursuant to Item 3(v).
4.8 The description of the Registrant's Preferred Shares Purchase
Rights. Reference is made to the Registrant's Registration
Statement on Form 8-A/A filed with the Commission on March 25,
1998, incorporated by reference pursuant to Item 3(vi).
4.9 Specimen Certificate of the Registrant's Common Stock
(incorporated by reference to Exhibit 1 filed with Amendment No.
1 to the Registrant's Form 8-A filed with the Securities and
Exchange Commission on November 6, 1992).
5 Opinion of Gibson, Dunn & Crutcher LLP (previously filed).
23 Consent of Ernst & Young LLP, Independent Auditors.
24 Power of Attorney (previously filed).
99.1 The Vantive Corporation Amended and Restated 1991 Stock Option
Plan. (previously filed)
99.2 The Vantive Corporation 1995 Outside Directors Stock Option
Plan. (previously filed)
99.3 The Vantive Corporation 1997 Nonstatutory Stock Option Plan.
(previously filed)
99.4 Innovative Computer Concepts, Inc. 1995 Stock Incentive Plan.
</TABLE>
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Item 9. Undertaking
(1) The undersigned Registrant hereby undertakes:
(a) 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;
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(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii)To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement; provided, however, that paragraphs (1)(a)(i)
and (1)(a)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in
this registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 2 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pleasanton, State of
California, on this 4th day of February, 2000.
PeopleSoft, Inc.
By: /s/ Stephen F. Hill
---------------------------------
Stephen F. Hill
Vice President and Acting Chief
Financial Officer
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.
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Signature Title Date
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* Chairman of the Board of Directors February 4, 2000
- ----------------------------
David A. Duffield
* Vice Chairman of the Board of Directors February 4, 2000
- ----------------------------
Aneel Bhusri
* President, Chief Executive Officer and February 4, 2000
- ---------------------------- Director (Principal Executive Officer
Craig Conway and Director)
/s/ Stephen F. Hill Vice President and Acting Chief February 4, 2000
- ---------------------------- Financial Officer (Principal Financial
Stephen F. Hill and Accounting Officer)
Director
- ----------------------------
A. George Battle
* Director February 4, 2000
- ----------------------------
George J. Still Jr.
* Director February 4, 2000
- ----------------------------
Cyril J. Yansouni
</TABLE>
* By: /s/ Stephen F. Hill
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Stephen F. Hill
Attorney-in-Fact
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER EXHIBIT TITLE
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4.1 Restated Certificate of Incorporation of Registrant filed with
the Secretary of State of the State of Delaware on May 24, 1995
(incorporated by reference to Exhibit 4.1 filed with the
Registrant's Form S-8 (No. 333-08575) filed with the Securities
and Exchange Commission on July 22, 1996).
4.2 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State of
Delaware on June 17, 1996 (incorporated by reference to Exhibit
4.2 filed with the Registrant's Form S-8 (No. 333-08575) filed
with the Securities and Exchange Commission on July 22, 1996).
4.3 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State of
Delaware on July 3, 1997 (incorporated by reference to Exhibit
3.3 filed with the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1997).
4.4 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State of
Delaware on June 29, 1998 (incorporated by reference to Exhibit
3.4 filed with the Registrant's Registration Statement on Form
S-4 (No. 333-91111) filed with the Securities and Exchange
Commission on November 17, 1999).
4.5 Certificate of Designation as filed with the Secretary of State
of the State of Delaware on March 24, 1998 (incorporated by
reference to Exhibit 3.4 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.6 Bylaws of Registrant as amended to date (incorporated by
reference to Exhibit 3.5 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1998).
4.7 The description of the Registrant's Common Stock. Reference is
to the Registrant's Registration Statement on Form 8-A, filed
with the Commission on October 7, 1992, incorporated by
reference pursuant to Item 3(v).
4.8 The description of the Registrant's Preferred Shares Purchase
Rights. Reference is made to the Registrant's Registration
Statement on Form 8-A/A filed with the Commission on March 25,
1998, incorporated by reference pursuant to Item 3(vi).
4.9 Specimen Certificate of the Registrant's Common Stock
(incorporated by reference to Exhibit 1 filed with Amendment No.
1 to the Registrant's Form 8-A filed with the Securities and
Exchange Commission on November 6, 1992).
5 Opinion of Gibson, Dunn & Crutcher LLP (previously filed).
23 Consent of Ernst & Young LLP, Independent Auditors.
24 Power of Attorney (previously filed).
99.1 The Vantive Corporation Amended and Restated 1991 Stock Option
Plan (previously filed).
99.2 The Vantive Corporation 1995 Outside Directors Stock Option Plan
(previously filed).
99.3 The Vantive Corporation 1997 Nonstatutory Stock Option Plan
(previously filed).
99.4 Innovative Computer Concepts, Inc. 1995 Stock Incentive Plan.
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Vantive Corporation Amended and Restated 1991 Stock
Option Plan, the Vantive Corporation 1995 Outside Directors Stock Option Plan,
the Vantive Corporation 1997 Nonstatutory Stock Option Plan and the individual
option agreements granted under the Innovative Computer Concepts, Inc. 1995
Stock Incentive Plan assumed by The Vantive Corporation of PeopleSoft Inc., 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.
Walnut Creek, California By: /s/ Ernst & Young LLP
February 3, 2000 -----------------------
<PAGE> 1
EXHIBIT 99.4
INNOVATIVE COMPUTER CONCEPTS, INC.
1995 STOCK INCENTIVE PLAN
Section 1. Purpose
The purpose of this Stock Incentive Plan (the "Plan") is to advance the
interests of Innovative Computer Concepts, Inc. by enhancing its ability to
attract and retain key employees, consultants and others who are in a position
to contribute to the Company's future growth and success.
Section 2. Definitions
"Award" means any Option, Stock Appreciation Right, Performance Share,
Restricted Stock or Unrestricted Stock awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Committee" means a committee of not less than two members of the Board
appointed by the Board to administer the Plan, provided that if and when the
Common stock is registered under Section 12 of the Securities Exchange Act of
1934, each member of the Committee shall be a "disinterested person" within the
meaning of Rule 16b-3 under the Securities Exchange Act of 1934 ("Rule 16b-3").
"Common Stock" or "Stock" means the Common Stock of the Company.
"Company" means Innovative Computer Concepts, Inc. and, except where the
content otherwise requires, all present and future subsidiaries of the Company
as defined in Sections 424(f) of the Code.
"Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due or
exercise rights of the Participant in the event of the Participant's death. In
the absence of an effective designation by a Participant, Designated Beneficiary
shall mean the Participant's estate.
"Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the Board in
good faith or in the manner established by the Board from time to time.
"Incentive Stock Option" means an option to purchase shares of Common
Stock awarded to a participant under Section 6 which is intended to meet the
requirements of Section 422 of the Code or any successor provision.
"Nonstatutory Stock Option" means an option to purchase shares of Common
Stock awarded to a Participant under Section 6 which is not intended to be an
Incentive Stock Option.
<PAGE> 2
"Option" means an Incentive Stock Option or a Nonstatutory Stock Option.
"Participant" means a person selected by the Board to receive an Award
under the Plan.
"Performance Shares" mean shares of Common Stock which may be earned by
the achievement of performance goals awarded to a Participant under Section 8.
"Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time selected by the Board
during which shares subject to a Restricted Stock Award may be repurchased by or
forfeited to the Company.
"Restricted Stock" means shares of Common Stock awarded to a Participant
under Section 9.
"Stock Appreciation Right" means a right to receive any excess in Fair
Market Value of shares of Common Stock over the exercise price awarded to a
Participant under Section 7.
"Unrestricted Stock" means shares of Common Stock awarded to a
Participant under Section 9(c).
Section 3. Administration
The Plan will be administered by the Board. The Board shall have
authority to make Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable
from time to time, and to interpret the provisions of the Plan. The Board's
decisions shall be final and binding. No member of the Board shall be liable for
any action or determination relating to the Plan made in good faith. To the
extent permitted by applicable law, the Board may delegate to one or more
executive officers of the Company the power to make Awards to Participants who
are not Reporting Persons and all determinations under the Plan with respect
thereto, provided that the Board shall fix the maximum amount of such Awards to
be made by such executive officers and a maximum amount for any one Participant.
To the extent permitted by applicable law, the Board may appoint a Committee to
administer the Plan and, in such event, all references to the Board in the Plan
shall mean such Committee or the Board. All decisions by the Board or the
Committee pursuant to the Plan shall be final and binding on all persons having
or claiming any interest in the Plan or in any Award.
Section 4. Eligibility
All of the Company's employees, officers, directors, consultants and
advisors who are expected to contribute to the Company's future growth and
success, other than persons who have irrevocably elected not to be eligible, are
eligible to be Participants in the plan. Incentive Stock Options may be awarded
only to persons eligible to receive Incentive Stock Options under the Code.
Section 5. Stock Available for Awards
2
<PAGE> 3
(a) Subject to adjustment under subsection (b) below, Awards may be made
under the Plan for up to [_______] shares of Common Stock. If any Award in
respect of shares of Common Stock expires or is terminated unexercised or is
forfeited for any reason or settled in a manner that results in fewer shares
outstanding than were initially awarded, the shares subject to such Award or so
surrendered, as the case may be, to the extent of such expiration, termination,
forfeiture or decrease, shall again be available for award under the Plan.
Shares issued under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.
(b) In the event that the Board, in its sole discretion, determines that
any stock dividend, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination or other
similar transaction affects the Common Stock such that an adjustment is required
in order to preserve the benefits or potential benefits intended to be made
available under the Plan, then the Board, subject, in the case of Incentive
Stock Options, to any limitation required under the Code, shall equitably adjust
any or all of (i) the number and kind of shares in respect of which Awards may
be made under the Plan, (ii) the number and kind of shares subject to
outstanding Awards, and (iii) the award, exercise or conversion price with
respect to any of the foregoing, and if considered appropriate, the Board may
make provision for a cash payment with respect to an outstanding Award, provided
that the number of shares subject to any Award shall always be a whole number.
(c) The Board may grant Awards under the Plan in substitution for stock
and stock based awards held by employees of another corporation who concurrently
become employees of the Company as a result of a merger or consolidation of the
employing corporation with the Company or a Subsidiary or the acquisition by the
Company or a Subsidiary of property or stock of the employing corporation. The
substitute Awards shall be granted on such terms and conditions as the Board
considers appropriate in the circumstances. The shares which may be delivered
under such substitute Awards shall be in addition to the maximum number of
shares provided for in Section 5(a) only to the extent that the substitute
Awards are both (i) granted to persons whose relationship to the company does
not make (and is not expected to make) them Reporting Persons; and (ii) granted
in substitution for awards issued under a plan approved, to the extent then
required under Rule 16b-3, by the stockholders of the entity which issued such
predecessor awards.
Section 6. Stock Options
(a) General.
(i) Subject to the provisions of the plan, the Board may award
Incentive Stock Options and Nonstatutory Stock Options, and determine the number
of shares to be covered by each Option, the option price therefor and the
conditions and limitations applicable to the exercise of the Option. The terms
and conditions of Incentive Stock Options shall be subject to and comply with
Section 422 of the Code, or any successor provision, and any regulations
thereunder.
(ii) The Board shall establish the exercise price at the time each
Option is awarded. In the case of Incentive Stock Options, such price shall not
be less than 100% of the Fair Market Value of the Common Stock on the date of
award.
3
<PAGE> 4
(iii) Each option shall be exercisable at such times and subject to
such terms and conditions as the Board may specify in the applicable Award or
thereafter. The Board may impose such conditions with respect to the exercise of
options, including conditions relating to applicable federal or state securities
laws, as it considers necessary or advisable.
(iv) Options granted under the Plan may provide for the payment of
the exercise price by delivery of cash or check in an amount equal to the
exercise price of such Options or, to the extent permitted by the Board at or
after the award of the Option, by (A) delivery of shares of Common Stock owned
by the optionee for at least twelve months (or such shorter period as is
approved by the Board), valued at their Fair Market Value, (B) delivery of a
promissory note of the optionee to the Company on terms determined by the Board,
(C) delivery of an irrevocable undertaking by a broker to deliver promptly to
the Company sufficient funds to pay the exercise price or delivery of
irrevocable instructions to a broker to deliver promptly to the Company cash or
a check sufficient to pay the exercise price, (D) payment of such other lawful
consideration as the Board may determine, or (E) any combination of the
foregoing.
(v) The Board may provide for the automatic award of an option upon
the delivery of shares to the company in payment of the exercise price of an
Option for up to the number of shares so delivered.
(vi) The Board may at any time accelerate the time at which all or
any part of an option may be exercised.
(b) Incentive Stock Options.
Options granted under the Plan which are intended to be Incentive Stock
Options shall be subject to the following additional terms and conditions:
(i) All Incentive Stock Options granted under the Plan shall, at the
time of grant, be specifically designated as such in the option agreement
covering such Incentive Stock Options. The Option exercise period shall not
exceed ten years from the date of grant.
(ii) If any employee to whom an Incentive Stock Option is to be
granted under the Plan is, at the time of the grant of such option, the owner of
stock possessing more than 10% of the total combined voting power of all classes
of stock of the Company (after taking into account the attribution of stock
ownership rule of Section 424(d) and of the Code), then the following special
provisions shall be applicable to the Incentive Stock Option granted to such
individual:
(x) The purchase price per share of the Common Stock subject to
such Incentive Stock Option shall not be less than 110% of the Fair
Market Value of one share of Common Stock at the time of grant; and
(y) The option exercise period shall not exceed five years from
the date of grant.
(iii) For so long as the Code shall so provide, options granted to
any employee under the Plan (and any other incentive stock option plans of the
Company) which are intended
4
<PAGE> 5
to constitute Incentive Stock Options shall not constitute Incentive Stock
Options to the extent that such options, in the aggregate, become exercisable
for the first time in any one calendar year for shares of Common Stock with an
aggregate Fair Market Value (determined as of the respective date or dates of
grant) of more than $100,000.
(iv) No Incentive Stock Option may be exercised unless, at the time
of such exercise, the Participant is, and has been continuously since the date
of grant of his or her Option, employed by the Company, except that:
(x) an Incentive Stock Option may be exercised within the period
of three months after the date the Participant ceases to be an employee
of the Company (or within such lesser period as may be specified in the
applicable option agreement), provided, that the agreement with respect
to such Option may designate a longer exercise period and that the
exercise after such three-month period shall be treated as the exercise
of a Nonstatutory Stock Option under the Plan;
(y) if the Participant dies while in the employ of the company,
or within three months after the Participant ceases to be such an
employee, the Incentive Stock Option may be exercised by the
Participant's Designated Beneficiary within the period of one year after
the date of death (or within such lesser period as may be specified in
the applicable Option agreement); and
(z) if the Participant becomes disabled (within the meaning of
Section 22(e)(3) of the Code or any successor provision thereto) while
in the employ of the Company, the Incentive Stock Option may be
exercised within the period of one year after the date of disability (or
within such lesser period as may be specified in the Option agreement).
For all purposes of the Plan and any Option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no Incentive Stock Option may be exercised after its
expiration date.
Section 7. Stock Appreciation Rights
(a) The Board may grant Stock Appreciation Rights entitling recipients
on exercise of the Stock Appreciation Right to receive an amount, in cash or
Stock or a combination thereof (such form to be determined by the Board),
determined in whole or in part by reference to appreciation in the Fair Market
Value of the Stock between the date of the Award and the exercise of the Award.
A Stock Appreciation Right shall entitle the Participant to receive, with
respect to each share of Stock as to which the stock Appreciation Right is
exercised, the excess of the share's Fair Market value on the date of exercise
over its Fair Market Value on the date the SAR was granted. The Board may also
grant Stock Appreciation Rights that provide that, following a change in control
of the Company (as defined by the Board at the time of the Award), the holder of
such Stock Appreciation Right will be entitled to receive, with respect to each
share of Stock subject to the Stock Appreciation Right, an amount equal to the
excess of a specified value (which may include an average of values) for a share
of stock during a period
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preceding such change in control over the Fair Market Value of a share of Stock
on the date the Stock Appreciation Right was granted.
(b) Stock Appreciation Rights may be granted in tandem with, or
independently of, options granted under the Plan. A Stock Appreciation Right
granted in tandem with an Option which is not an Incentive Stock Option may be
granted either at or after the time the Option is granted. A Stock Appreciation
Right granted in tandem with an Incentive Stock Option may be granted only at
the time the Option is granted.
(c) When Stock Appreciation Rights are granted in tandem with Options,
the following provisions will apply:
(i) The Stock Appreciation Right will be exercisable only at such
time or times, and to the extent, that the related option is exercisable and
will be exercisable in accordance with the procedure required for exercise of
the related option.
(ii) The Stock Appreciation Right will terminate and no longer be
exercisable upon the termination or exercise of the related Option, except that
a Stock Appreciation Right granted with respect to less than the full number of
shares covered by an option will not be reduced until the number of shares as to
which the related Option has been exercised or has terminated exceeds the number
of shares not covered by the Stock Appreciation Right.
(iii) The Option will terminate and no longer be exercisable upon
the exercise of the related Stock Appreciation Right.
(iv) The Stock Appreciation Right will be transferable only with the
related Option.
(v) A Stock Appreciation Right granted in tandem with an Incentive
Stock Option may be exercised only when the market price of the Stock subject to
the Option exceeds the exercise price of such option.
(d) A Stock Appreciation Right not granted in tandem with an Option will
become exercisable at such time or times, and on such conditions, as the Board
may specify.
(e) The Board may at any time accelerate the time at which all or any
part of the Stock Appreciation Right may be exercised.
Section 8. Performance Shares
(a) The Board may make Performance Share Awards entitling recipients to
acquire shares of Stock upon the attainment of specified performance goals. The
Board may make Performance Share Awards independent of or in connection with the
granting of any other Award under the Plan. The Board in its sole discretion
shall determine the performance goals applicable under each such Award, the
periods during which performance is to be measured, and all other limitations
and conditions applicable to the awarded Performance Shares; provided, however,
that the Board may rely on the performance goals and other standards applicable
to
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other performance plans of the Company in setting the standards for Performance
Share Awards under the Plan.
(b) Performance Share Awards and all rights with respect to such Awards
may not be sold, assigned, transferred, pledged or otherwise encumbered.
(c) A Participant receiving a Performance Share Award shall have the
rights of a stockholder only as to shares actually received by the Participant
under the Plan and not with respect to shares subject to an Award but not
actually received by the Participant. A Participant shall be entitled to receive
a stock certificate evidencing the acquisition of shares of Stock under a
Performance Share Award only upon satisfaction of all conditions specified in
the agreement evidencing the Performance Share Award.
(d) The Board may at any time accelerate or waive any or all of the
goals, restrictions or conditions imposed under any Performance Share Award.
Section 9. Restricted and Unrestricted Stock
(a) The Board may grant Restricted Stock Awards entitling recipients to
acquire shares of Stock, subject to the right of the company to repurchase all
or part of such shares at their purchase price (or to require forfeiture of such
shares if purchased at no cost) from the recipient in the event that conditions
specified by the Board in the applicable Award are not satisfied prior to the
end of the applicable Restricted Period or Restricted Periods established by the
Board for such Award. Conditions for repurchase (or forfeiture) may be based on
continuing employment or service or achievement of pre-established performance
or other goals and objectives.
(b) Shares of Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered, except as permitted by the Board, during the
applicable Restricted Period. Shares of Restricted Stock shall be evidenced in
such manner as the Board may determine. Any certificates issued in respect of
shares of Restricted Stock shall be registered in the name of the Participant
and, unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company (or its
designee). At the expiration of the Restricted Period, the Company (or such
designee) shall deliver such certificates to the Participant or if the
Participant has died, to the Participant's Designated Beneficiary.
(c) The Board may, in its sole discretion, grant (or sell at a purchase
price determined by the Board, which shall not be lower than 85% of Fair Market
Value on the date of sale) to Participants shares of Stock free of any
restrictions under the Plan ("Unrestricted Stock").
(d) The purchase price for each share of Restricted Stock and
Unrestricted Stock shall be determined by the Board of Directors and may not be
less than the par value of the Common Stock. Such purchase price may be paid in
the form of past services or such other lawful consideration as is determined by
the Board.
(e) The Board may at any time accelerate the expiration of the
Restricted Period applicable to all, or any particular, outstanding shares of
Restricted Stock.
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Section 10. General Provisions Applicable to Awards
(a) Applicability-of-Rule 16b-3. Those provisions of the Plan which make
an express reference to Rule 16b-3 shall apply to the Company only at such time
as the Company's Common Stock is registered under the Securities Exchange Act of
1934, or any successor provision, and then only to Reporting Persons.
(b) Reporting Person Limitations. Notwithstanding any other provision of
the Plan, to the extent required to qualify for the exemption provided by Rule
16b-3, (i) any Option, Stock Appreciation Right, Performance Share Award or
other similar right related to an equity security issued under the Plan to a
Reporting Person shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations order as
defined by the Code or Title I or the Employee Retirement Income Security Act
("ERISA"), or the rules thereunder, and shall be exercisable during the
Participant's lifetime only by the Participant or the Participant's guardian or
legal representative, and (ii) the selection of a Reporting Person as a
Participant and the terms of his or her Award shall be determined only in
accordance with the applicable provisions of Rule 16b-3.
(c) Documentation. Each Award under the Plan shall be evidenced by an
instrument delivered to the Participant specifying the terms and conditions
thereof and containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Board considers necessary or advisable. Such
instruments may be in the form of agreements to be executed by both the Company
and the Participant, or certificates, letters or similar documents, acceptance
of which will evidence agreement to the terms thereof and of this Plan.
(d) Board Discretion. Each type of Award may be made alone, in addition
to or in relation to any other type of Award. The terms of each type of Award
need not be identical, and the Board need not treat Participants uniformly.
Except as otherwise provided by the Plan or a particular Award, any
determination with respect to an Award may be made by the Board at the time of
award or at any time thereafter.
(e) Termination of Status. Subject to the provisions of Section
6(b)(iv), the Committee shall determine the effect on an Award of the
disability, death, retirement, authorized leave of absence or other termination
of employment or other status of a Participant and the extent to which, and the
period during which, the Participant's legal representative, guardian or
Designated Beneficiary may exercise rights under such Award.
(f) Mergers, Etc. In the event of a consolidation, merger or other
reorganization in which all of the outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity (an "Acquisition") or in the event of a liquidation of the
Company, the Board of Directors of the Company, or the board of directors of any
corporation assuming the obligations of the Company, may, in its discretion,
take any one or more of the following actions as to outstanding Awards: (i)
provide that such Awards shall be assumed, or substantially equivalent Awards
shall be substituted by the acquiring or succeeding corporation (or an affiliate
thereof) on such terms as the Board determines to be appropriate, (ii) upon
written notice to Participants, provide that all unexercised options or Stock
Appreciation Rights will terminate immediately prior to the consummation of such
transaction unless
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exercised by the Participant within a specified period following the date of
such notice, (iii) in the event of an Acquisition under the terms of which
holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the Acquisition (the
"Acquisition Price"), make or provide for a cash payment to Participants equal
to the difference between (A) the Acquisition Price times the number of shares
of Common Stock subject to outstanding Options or Stock Appreciation Rights (to
the extent then exercisable at prices not in excess of the Acquisition Price)
and (B) the aggregate exercise price of all such outstanding Options or Stock
Appreciation Rights in exchange for the termination of such Options and Stock
Appreciation Rights, and (iv) provide that all or any outstanding Awards shall
become exercisable or realizable in full prior to the effective date of such
Acquisition.
(g) Withholding. The Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in respect of Awards under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, and subject to such
conditions as the Board may establish, such tax obligations may be paid in whole
or in part in shares of Common Stock, including shares retained from the Award
creating the tax obligation, valued at their Fair Market Value. The Company may,
to the extent permitted by law, deduct any such tax obligations from any payment
of any kind otherwise due to the Participant.
(h) Foreign Nationals. Awards may be made to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Board considers
necessary or advisable to achieve the purposes of the Plan or comply with
applicable laws.
(i) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the same or
a different type, changing the date of exercise or realization and converting an
Incentive Stock Option to a Nonstatutory Stock Option, provided that the
Participant's consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
(j) Cancellation and New Grant of Options. The Board of Directors shall
have the authority to effect, at any time and from time to time, with the
consent of the affected optionees, (i) the cancellation of any or all
outstanding Options under the Plan and the grant in substitution therefor of new
Options under the Plan covering the same or different numbers of shares of
Common Stock and having an option exercise price per share which may be lower or
higher than the exercise price per share of the cancelled Options or (ii) the
amendment of the terms of any and all outstanding Options under the Plan to
provide an option exercise price per share which is higher or lower than the
then current exercise price per share of such outstanding Options.
(k) Conditions on Delivery of Stock. The Company will not be obligated
to deliver any shares of Stock pursuant to the Plan or to remove restrictions
from shares previously delivered under the Plan (i) until all conditions of the
Award have been satisfied or removed, (ii) until, in the opinion of the
Company's counsel, all applicable federal and state laws and regulations have
been complied with, (iii) if the outstanding Stock is at the time listed on any
stock exchange, until the shares to be delivered have been listed or authorized
to be listed on
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such exchange upon official notice of notice of issuance, and (iv) until all
other legal matters in connection with the issuance and delivery of such shares
have been approved by the Company's counsel. If the sale of Stock has not been
registered under the Securities Act of 1933, as amended, the Company may
require, as a condition to exercise of the Award, such representations or
agreements as the Company may consider appropriate to avoid violation of such
Act and may require that the certificates evidencing such Stock bear an
appropriate legend restricting transfer.
Section 11. Miscellaneous
(a) No Right To Employment or Other Status. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or service
for the Company. The Company expressly reserves the right at any time to dismiss
a Participant free from any liability or claim under the Plan, except as
expressly provided in the applicable Award.
(b) No Rights As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the record holder thereof.
(c) Exclusion from Benefit Computations. No amounts payable upon
exercise of Awards granted under the Plan shall be considered salary, wages or
compensation to Participants for purposes of determining the amount or nature of
benefits that Participants are entitled to under any insurance, retirement or
other benefit plans or programs of the Company.
(d) Effective Date and Term. Subject to the approval of the stockholders
of the Company, the Plan shall be effective on the date of approval of the Plan
by the Board of Directors of the Company (the "Effective Date"). Prior to such
approval, Awards may be made under the Plan expressly subject to such approval.
No Award may be made under the Plan after the tenth anniversary of the Effective
Date, but Awards previously granted may extend beyond that date.
(e) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time, provided that no amendment shall be
made without stockholder approval if such approval is necessary to comply with
any applicable tax or regulatory requirement, including any requirements for
compliance with Rule 16b-3. Prior to any such approval, Awards may be made under
the Plan expressly subject to such approval.
(f) Governing Law. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of the State of New Hampshire.
Adopted by the Board of Directors
on _________________________,1995
Approved by the stockholders
on ________________________, 1995
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