<PAGE> 1
As filed with the Securities and Exchange Commission on July 3, 1996
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FRITZ COMPANIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 94-3083515
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
706 Mission Street, Suite 900, San Francisco, California 94103
(Address of principal executive offices) (Zip Code)
FRITZ COMPANIES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Lynn C. Fritz
Fritz Companies, Inc.
706 Mission Street, Suite 900, San Francisco, California 94103
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 904-8360
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe
400 Sansome Street
San Francisco, California 94111-3143
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Maximum Aggregate Amount of
Securities to Amount to be Offering Price Offering Registration
be Registered Registered Per Share* Price* Fee*
<S> <C> <C> <C> <C>
Common Stock 100,000 $33.25 $3,325,000 $1,147.00
shares
</TABLE>
* Estimated solely for the purpose of calculating the registration fee on the
basis of $33.25 per share, the average of the high and low prices for the Common
Stock on June 28, 1996 as reported by NASDAQ.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of Fritz Companies, Inc. (the "Company")
filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"); (ii) all other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Company's latest annual report; and (iii) the description of the
Company's common stock set forth in the Company's Registration Statement on Form
8-A relating thereto, including any amendment or report filed for the purpose of
updating such description. All documents filed by the Company after the date of
this registration statement pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment (that
indicates all securities offered have been sold or deregisters all securities
then remaining unsold), shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article FIFTH of the Company's Certificate of Incorporation provides that
directors of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director, to
the fullest extent permitted by the General Corporation Law of the State of
Delaware (the "DGCL").
Article V of the Company's Bylaws provides for indemnification of officers and
directors to the full extent and in the manner permitted by Delaware law.
Section 145 of the DGCL makes provision for such indemnification in terms
sufficiently broad to cover officers and directors under certain circumstances
for liabilities arising under the Securities Act of 1933.
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<PAGE> 3
The Company has obtained officers, and directors' liability insurance which
provides coverage against various types of liabilities, including liabilities
which could arise under the Securities Act of 1933.
The Company has entered into indemnification agreements with each director and
officer which provide indemnification under certain circumstances for acts and
omissions which may not be covered by any directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 The Fritz Companies, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in
Exhibit 5.1.
24.1 Power of Attorney of Directors
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(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;
(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;
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<PAGE> 4
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3 or Form S-8 and 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933 each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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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<PAGE> 5
Signatures
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on the 28th day of
June, 1996.
Fritz Companies, Inc.
(Registrant)
/s/ Lynn C. Fritz
- -----------------------------
Lynn C. Fritz
Chairman of the Board,
President and
Chief Executive 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
dated indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Principal Executive Officer:
/s/ Lynn C. Fritz
- -----------------------------
Lynn C. Fritz Chairman of the, June 28, 1996
Board, President
and Chief Executive
Officer
Principal Financial and Accounting
Officer:
/s/ John H. Johung
- -----------------------------
John H. Johung Senior Vice June 28, 1996
President,
Chief Financial
Officer
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Directors:
/s/ Lynn C. Fritz
- -----------------------------
Lynn C. Fritz Director June 28, 1996
/s/ James Gilleran
- -----------------------------
James Gilleran Director June 28, 1996
/s/ Ronald A. Marcillac
- -----------------------------
Ronald A. Marcillac Director June 28, 1996
/s/ Preston Martin
- -----------------------------
Preston Martin Director June 28, 1996
/s/ Dennis L. Pelino
- -----------------------------
Dennis L. Pelino Director June 28, 1996
*By: /s/ Jan H. Raymond
- -----------------------------
Jan H. Raymond
Attorney-in-Fact
</TABLE>
A majority of the members of the Board of Directors.
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<PAGE> 7
EXHIBIT INDEX
4.1 The Fritz Companies, Inc. Employee Stock Purchase Plan.
5.1 Opinion of Orrick, Herrington & Sutcliffe.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe is included in
Exhibit 5.1.
24.1 Power of Attorney of Directors.
7
<PAGE> 1
Exhibit 4.1
FRITZ COMPANIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
SECTION 1
PURPOSE
Fritz Companies, Inc. hereby establishes The Fritz Companies,
Inc. Employee Stock Purchase Plan, effective as of August 1, 1996, in order to
provide eligible employees of the Company and its participating Subsidiaries
with the opportunity to purchase Common Stock through payroll deductions. The
Plan is intended to qualify as an employee stock purchase plan under Section
423(b) of the Code.
SECTION 2
DEFINITIONS
2.1 "1934 Act" means the Securities Exchange Act of 1934, as
amended. Reference to a specific Section of the 1934 Act or regulation
thereunder shall include such Section or regulation, any valid regulation
promulgated under such Section, and any comparable provision of any future
legislation or regulation amending, supplementing or superseding such Section or
regulation.
2.2 "Board" means the Board of Directors of the Company.
2.3 "Code" means the Internal Revenue Code of 1986, as
amended. Reference to a specific Section of the Code or regulation thereunder
shall include such Section or regulation, any valid regulation promulgated under
such Section, and any comparable provision of any future legislation or
regulation amending, supplementing or superseding such Section or regulation.
2.4 "Committee" shall mean the committee appointed by the
Board to administer the Plan. The members of the Committee shall serve at the
pleasure of the Board and shall be comprised solely of members of the Board who
are "disinterested persons" under Rule 16b-3 under the 1934 Act. Any member of
the Committee may resign at any time by notice in writing mailed or delivered to
the Secretary of the Company. As of the effective date of the Plan, the
Committee shall be administered by the Audit and Compensation Committee of the
Board.
2.5 "Common Stock" means the common stock of the Company.
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<PAGE> 2
2.6 "Company" means Fritz Companies, Inc., a Delaware
corporation.
2.7 "Compensation" means a Participant's base salary or
regular wages (including sick pay and vacation pay). A Participant's
compensation shall not include any other type of remuneration.
2.8 "Eligible Employee" means every Employee of an Employer,
except any Employee who (a) has not completed at least one year of service since
his or her last hire date, (b) customarily works not more than 20 hours per
week, or (c) immediately after the grant of an option under the Plan, 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 (including stock attributed
to such Employee pursuant to Section 424(d) of the Code), provided that the
Committee, in its discretion, from time to time may determine that officers of
the Company (as defined in Rule 16a-1 promulgated under the 1934 Act) shall not
be Eligible Employees. Notwithstanding any contrary provision of clause (a) of
the preceding sentence: (1) if an Employee who has satisfied the one year
service requirement terminates employment with all Subsidiaries and, within one
year of the termination, is rehired by an Employer, then the Employee shall be
deemed to have satisfied the one year service requirement as of his or her
rehire date, and (2) if an Employee becomes such as a direct result of the
acquisition by the Company or a Subsidiary of the equity or assets of a
non-Subsidiary, then solely for purposes of the Plan, the Employee shall receive
service credit for his or her service with the non-Subsidiary commencing with
the Employee's last date of hire with the non-Subsidiary.
2.9 "Employee" means an individual who is a common-law
employee of any Employer, whether such employee is so employed at the time the
Plan is adopted or becomes so employed subsequent to the adoption of the Plan.
2.10 "Employer" or "Employers" means any one or all of the
Company and those Subsidiaries which, with the consent of the Board, have
adopted the Plan.
2.11 "Enrollment Date" means the first business day of each
Plan Year Quarter and/or such other dates determined by the Committee (in its
discretion) from time to time.
2.12 "Grant Date" means any date on which a Participant is
granted an option under the Plan.
2.13 "Participant" means an Eligible Employee who (a) has
become a Participant in the Plan pursuant to Section 4.1
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<PAGE> 3
and (b) has not ceased to be a Participant pursuant to Section 8 or Section 9.
2.14 "Plan" means The Fritz Companies, Inc. Employee Stock
Purchase Plan, as set forth in this instrument and as hereafter amended from
time to time.
2.15 "Plan Year" means the period of 12 consecutive months
from August 1, 1996, through July 31, 1997, and each successive 12-month period
thereafter.
2.16 "Plan Year Quarter" means any of the four periods of
three consecutive months which comprise the Plan Year: (a) August 1 through
October 31, (b) November 1 through January 31, (c) February 1 through April 30,
and (d) May 1 through July 31.
2.17 "Purchase Date" means the last business day of each Plan
Year Quarter, or such other specific business days as may be established by the
Committee from time to time prior to an Enrollment Date for all options to be
granted on such Enrollment Date.
2.18 "Subsidiary" means any corporation in an unbroken chain
of corporations beginning with the Company if each of the corporations other
than the last corporation in the unbroken chain then owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
SECTION 3
SHARES SUBJECT TO THE PLAN
3.1 Number Available. A maximum of 200,000 shares of Common
Stock shall be available for issuance pursuant to the Plan. However, no more
than 100,000 shares of Common Stock actually shall be issued under the Plan
unless and until the Committee determines that the additional 100,000 shares may
be issued. Shares sold under the Plan may be newly issued shares or treasury
shares.
3.2 Adjustments. In the event of any reorganization,
recapitalization, stock split, reverse stock split, stock dividend, combination
of shares, merger, consolidation, offering of rights or other similar change in
the capital structure of the Company, the Board may make such adjustment, if
any, as it deems appropriate in the number, kind and purchase price of the
shares available for purchase under the Plan and in the maximum number of shares
subject to any option under the Plan.
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<PAGE> 4
SECTION 4
ENROLLMENT
4.1 Participation. Each Eligible Employee may elect to become
a Participant by enrolling or re-enrolling in the Plan effective as of any
Enrollment Date. In order to enroll, an Eligible Employee must complete, sign
and submit to the Company an enrollment form in such form as may be specified by
the Committee from time to time. Any enrollment form received by the Company no
later than seven calendar days before an Enrollment Date shall be effective on
that Enrollment Date, provided that the Committee, in its discretion, may (on a
uniform and nondiscriminatory basis) specify an earlier or later deadline for
the submission of enrollment forms. Any Participant whose option expires and who
has not withdrawn from the Plan automatically will be re-enrolled in the Plan on
the Enrollment Date immediately following the Purchase Date on which his or her
option expires.
4.2 Payroll Withholding. On his or her enrollment form, each
Participant must elect to make Plan contributions via payroll withholding from
his or her Compensation. Pursuant to such procedures as the Committee may
specify from time to time, a Participant may elect to have withholding equal to
a specific dollar amount or a whole percentage from 1% to 10% (or such lesser
percentage that the Committee may establish from time to time for all options to
be granted on any Enrollment Date), provided that the dollar amount or
percentage elected shall result in expected withholding of (a) not less than
$15.00 per pay period, and (b) not more than $10,000 per Plan Year. A
Participant may elect to increase or decrease his or her rate of payroll
withholding (effective as of any Enrollment Date) by submitting a new enrollment
form in accordance with such procedures as may be established by the Committee
from time to time. A Participant may stop his or her payroll withholding by
submitting a new enrollment form in accordance with such procedures as may be
established by the Committee from time to time. In order to be effective, an
enrollment form must be received by the Company no later than seven calendar
days before the date elected for the change or cessation, provided that the
Committee, in its discretion, may (on a uniform and nondiscriminatory basis)
specify an earlier or later deadline for the submission of enrollment forms. Any
Participant who is automatically re-enrolled in the Plan will be deemed to have
elected to continue his or her contributions at the percentage last elected by
the Participant.
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<PAGE> 5
SECTION 5
OPTIONS TO PURCHASE COMMON STOCK
5.1 Grant of Option. On each Enrollment Date on which the
Participant enrolls or re-enrolls in the Plan, he or she shall be granted an
option to purchase shares of Common Stock.
5.2 Duration of Option. Each option granted under the Plan
shall expire on the earliest to occur of (a) the completion of the purchase of
shares on the last Purchase Date occurring within 27 months of the Grant Date of
such option, (b) such shorter option period as may be established by the
Committee from time to time prior to an Enrollment Date for all options to be
granted on such Enrollment Date, or (c) the date on which the Participant ceases
to be such for any reason. Until otherwise determined by the Committee for all
options to be granted on an Enrollment Date, the period referred to in clause
(b) in the preceding sentence shall mean the period from the applicable
Enrollment Date through the last business day prior to the immediately following
Enrollment Date.
5.3 Number of Shares Subject to Option. The number of shares
available for purchase by each Participant under the option will be established
by the Committee from time to time prior to an Enrollment Date for all options
to be granted on such Enrollment Date. In addition and notwithstanding the
preceding, an option (taken together with all other options then outstanding
under this Plan and under all other similar employee stock purchase plans of the
Employers) shall not give the Participant the right to purchase shares at a rate
which accrues in excess of $25,000 of fair market value at the applicable Grant
Dates of such shares (less the fair market value at the applicable Grant Dates
of any shares previously purchased during such year under options which have
expired or terminated) in any calendar year during which such Participant is
enrolled in the Plan at any time.
5.4 Other Terms and Conditions. Each option shall be
subject to the following additional terms and conditions:
(a) payment for shares purchased under the option shall be
made only through payroll withholding under Section 4.2;
(b) if determined by the Committee (in its discretion and on a
uniform and nondiscriminatory basis), funds credited to each
Participant's account may be credited with interest at a rate (which
may be a variable rate) determined by the Committee from time to time
in its discretion;
(c) purchase of shares upon exercise of the option will be
accomplished only in installments in accordance with Section 6.1;
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<PAGE> 6
(d) the price per share under the option will be determined as
provided in Section 6.1; and
(e) the option in all respects shall be subject to such other
terms and conditions (applied on a uniform and nondiscriminatory
basis), as the Committee shall determine from time to time in its
discretion.
SECTION 6
PURCHASE OF SHARES
6.1 Exercise of Option. Subject to Section 6.2, on each
Purchase Date, the funds then credited to each Participant's account shall be
used to purchase whole shares of Common Stock. Any cash remaining after whole
shares of Common Stock have been purchased shall be carried forward in the
Participant's account for the purchase of shares on the next Purchase Date. The
price per share of the shares purchased under any option shall be the lower of:
(a) the closing price per share of Common Stock on the
business day immediately preceding the Grant Date for such option on
the NASD National Market System; or
(b) 90% of the "average closing price per share" (for this
purpose, the "average closing price per share" means the arithmetic
mean of the closing prices per share of Common Stock on the Purchase
Date and the two business days immediately preceding the Purchase Date,
as reported for each such business day on the NASD National Market
System).
Notwithstanding the preceding, the purchase price under any option shall be
increased to the extent necessary to ensure that the maximum discount permitted
by Section 423(b) of the Code is not exceeded (all as determined by the
Committee in its sole discretion). Thus, the price per share under any option
shall equal at least 85% of the lower of: (1) the closing price per share of
Common Stock on the NASD National Market System on the Grant Date, or (2) the
closing price per share of Common Stock on the NASD National Market System on
the Purchase Date.
6.2 Crediting of Shares. Shares purchased on any Purchase Date
shall be delivered to a custodian or broker designated by the Committee to hold
shares for the benefit of the Participants. As determined by the Committee from
time to time, such shares shall be delivered as physical certificates or by
means of a book entry system. The Participant may direct the broker to sell such
shares at any time (subject to applicable securities laws). However, except as
determined by the Committee (in its discretion and on a uniform and
nondiscriminatory basis), the Participant may not direct that his or her shares
be
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<PAGE> 7
transferred to another broker or to any other person (including the
Participant).
6.3 Exhaustion of Shares. If at any time the shares available
under the Plan are over-enrolled, enrollments shall be reduced proportionately
to eliminate the over-enrollment. Such reduction method shall be "bottom up",
with the result that all option exercises for one share shall be satisfied
first, followed by all exercises for two shares, and so on, until all available
shares have been exhausted. Any funds that, due to over-enrollment, cannot be
applied to the purchase of whole shares shall be refunded to the Participants
(with interest).
SECTION 7
WITHDRAWAL
7.1 Withdrawal. A Participant may withdraw from the Plan by
submitting a completed enrollment form to the Company. A withdrawal will be
effective only if it is received by the Company at least seven calendar days
before the proposed date of withdrawal, provided that the Committee, in its
discretion, may specify (on a uniform and nondiscriminatory basis) an earlier or
later deadline for the submission of enrollment forms. When a withdrawal becomes
effective, the Participant's payroll contributions shall cease and all amounts
then credited to the Participant's account shall be distributed to him or her
(without interest for the current Plan Year Quarter). Notwithstanding any
contrary provision of the Plan, if a Participant withdraws from the Plan, he or
she shall be permitted to re-enroll in the Plan as of the earlier of (a) any
Enrollment Date which occurs six months or more after the date of his or her
withdrawal, or (b) the first Enrollment Date of the next Plan Year.
SECTION 8
CESSATION OF PARTICIPATION
8.1 Termination of Status as Eligible Employee. A Participant
shall cease to be a Participant immediately upon the cessation of his or her
status as an Eligible Employee (for example, because of his or her termination
of employment from all Employers for any reason). As soon as practicable after
such cessation, the Participant's payroll contributions shall cease and all
amounts then credited to the Participant's account shall be distributed to him
or her (with interest). If a Participant is on a Company-approved leave of
absence, his or her participation in the Plan shall continue for so long as he
or she remains an Eligible Employee and has not withdrawn from the Plan pursuant
to Section 7.1.
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<PAGE> 8
SECTION 9
DESIGNATION OF BENEFICIARY
9.1 Designation. Each Participant may, pursuant to such
uniform and nondiscriminatory procedures as the Committee may specify from time
to time, designate one or more Beneficiaries to receive any amounts credited to
the Participant's account at the time of his or her death. Notwithstanding any
contrary provision of this Section 9, Sections 9.1 and 9.2 shall be operative
only after (and for so long as) the Committee determines (on a uniform and
nondiscriminatory basis) to permit the designation of Beneficiaries.
9.2 Changes. A Participant may designate different
Beneficiaries (or may revoke a prior Beneficiary designation) at any time by
delivering a new designation (or revocation of a prior designation) in like
manner. Any designation or revocation shall be effective only if it is received
by the Committee. However, when so received, the designation or revocation shall
be effective as of the date the designation or revocation is executed (whether
or not the Participant still is living), but without prejudice to the Committee
on account of any payment made before the change is recorded. The last effective
designation received by the Committee shall supersede all prior designations.
9.3 Failed Designations. If a Participant dies without having
effectively designated a Beneficiary, or if no Beneficiary survives the
Participant, the Participant's Account shall be payable to his or her estate.
SECTION 10
ADMINISTRATION
10.1 Plan Administrator. The Plan shall be administered by the
Committee. The Committee shall have the authority to control and manage the
operation and administration of the Plan.
10.2 Actions by Committee. Each decision of a majority of the
members of the Committee then in office shall constitute the final and binding
act of the Committee. The Committee may act with or without a meeting being
called or held and shall keep minutes of all meetings held and a record of all
actions taken by written consent.
10.3 Powers of Committee. The Committee shall have all powers
and discretion necessary or appropriate to supervise the administration of the
Plan and to control its operation in accordance with its terms, including, but
not by way of limitation, the following discretionary powers:
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<PAGE> 9
(a) To interpret and determine the meaning and validity of the
provisions of the Plan and the options and to determine any question
arising under, or in connection with, the administration, operation or
validity of the Plan or the options;
(b) To determine any and all considerations affecting the
eligibility of any employee to become a Participant or to remain a
Participant in the Plan;
(c) To cause an account or accounts to be maintained for each
Participant;
(d) To determine the time or times when, and the number of
shares for which, options shall be granted;
(e) To establish and revise an accounting method or formula
for the Plan;
(f) To designate a custodian or broker to receive shares
purchased under the Plan and to determine the manner and form in which
shares are to be delivered to the designated custodian or broker;
(g) To determine the status and rights of Participants and
their Beneficiaries or estates;
(h) To employ such brokers, counsel, agents and advisers, and
to obtain such broker, legal, clerical and other services, as it may
deem necessary or appropriate in carrying out the provisions of the
Plan;
(i) To establish, from time to time, rules for the performance
of its powers and duties and for the administration of the Plan;
(j) To adopt such procedures and subplans as are necessary or
appropriate to permit participation in the Plan by employees who are
foreign nationals or employed outside of the United States;
(k) To determine the interest rate and methodology for
calculating the interest to be credited to Participants' accounts; and
(l) To delegate to any one or more of its members or to any
other person, severally or jointly, the authority to perform for and on
behalf of the Committee one or more of the functions of the Committee
under the Plan.
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<PAGE> 10
10.4 Decisions of Committee. All actions, interpretations, and
decisions of the Committee shall be conclusive and binding on all persons, and
shall be given the maximum possible deference allowed by law.
10.5 Administrative Expenses. All expenses incurred in the
administration of the Plan by the Committee, or otherwise, including legal fees
and expenses, shall be paid and borne by the Employers, except any stamp duties
or transfer taxes applicable to the purchase of shares may be charged to the
account of each Participant. Any brokerage fees for the purchase of shares by a
Participant shall be paid by the Company, but fees and taxes (including
brokerage fees) for the transfer, sale or resale of shares by a Participant, or
the issuance of physical share certificates, shall be borne solely by the
Participant.
10.6 Eligibility to Participate. No member of the Committee
who is also an employee of an Employer shall be excluded from participating in
the Plan if otherwise eligible, but he or she shall not be entitled, as a member
of the Committee, to act or pass upon any matters pertaining specifically to his
or her own account under the Plan.
10.7 Indemnification. Each of the Employers shall, and hereby
does, indemnify and hold harmless the members of the Committee and the Board,
from and against any and all losses, claims, damages or liabilities (including
attorneys' fees and amounts paid, with the approval of the Board, in settlement
of any claim) arising out of or resulting from the implementation of a duty, act
or decision with respect to the Plan, so long as such duty, act or decision does
not involve gross negligence or willful misconduct on the part of any such
individual.
SECTION 11
AMENDMENT, TERMINATION, AND DURATION
11.1 Amendment, Suspension, or Termination. The Board, in its
sole discretion, may amend or terminate the Plan, or any part thereof, at any
time and for any reason. If the Plan is terminated, the Board, in its
discretion, may elect to terminate all outstanding options either immediately or
upon completion of the purchase of shares on the next Purchase Date, or may
elect to permit options to expire in accordance with their terms (and
participation to continue through such expiration dates). If the options are
terminated prior to expiration, all amounts then credited to Participants'
accounts which have not been used to purchase shares shall be returned to the
Participants (with interest) as soon as administratively practicable.
17
<PAGE> 11
11.2 Duration of the Plan. The Plan shall commence on the date
specified herein, and subject to Section 11.1 (regarding the Board's right to
amend or terminate the Plan), shall remain in effect thereafter.
SECTION 12
GENERAL PROVISIONS
12.1 Participation by Subsidiaries. One or more Subsidiaries
of the Company may become participating Employers by adopting the Plan and
obtaining approval for such adoption from the Board. By adopting the Plan, an
Subsidiary shall be deemed to agree to all of its terms, including (but not
limited to) the provisions granting exclusive authority (a) to the Board to
amend the Plan, and (b) to the Committee to administer and interpret the Plan.
Any Subsidiary may terminate its participation in the Plan at any time. The
liabilities incurred under the Plan to the Participants employed by each
Employer shall be solely the liabilities of that Employer, and no other Employer
shall be liable for benefits accrued by a Participant during any period when he
or she was not employed by such Employer.
12.2 Inalienability. In no event may either a Participant, a
former Participant or his or her Beneficiary, spouse or estate sell, transfer,
anticipate, assign, hypothecate, or otherwise dispose of any right or interest
under the Plan; and such rights and interests shall not at any time be subject
to the claims of creditors nor be liable to attachment, execution or other legal
process. Accordingly, for example, a Participant's interest in the Plan is not
transferable pursuant to a domestic relations order. The preceding shall not
affect the Participant's right to direct the sale or transfer of shares that
have been allocated to the Participant's account at the broker designated by the
Committee (subject to the provisions of the Plan).
12.3 Severability. In the event any provision of the Plan
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Plan, and the Plan shall be
construed and enforced as if the illegal or invalid provision had not been
included.
12.4 Requirements of Law. The granting of options and the
issuance of shares shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or securities
exchanges as the Committee may determine are necessary or appropriate.
12.5 Compliance with Rule 16b-3. Any transactions under this
Plan with respect to officers (as defined in Rule 16a-1 promulgated under the
1934 Act) are intended to comply with all applicable conditions of Rule 16b-3.
To the extent any
18
<PAGE> 12
provision of the Plan or action by the Committee fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the
Committee. Notwithstanding any contrary provision of the Plan, if the Committee
specifically determines that compliance with Rule 16b-3 no longer is required,
all references in the Plan to Rule 16b-3 shall be null and void.
12.6 No Enlargement of Employment Rights. Neither the
establishment or maintenance of the Plan, the granting of options, the purchase
of shares, nor any action of any Employer or the Committee, shall be held or
construed to confer upon any individual any right to be continued as an employee
of the Employer nor, upon dismissal, any right or interest in any specific
assets of the Employers other than as provided in the Plan. Each Employer
expressly reserves the right to discharge any employee at any time, with or
without cause.
12.7 Apportionment of Costs and Duties. All acts required of
the Employers under the Plan may be performed by the Company for itself and its
Subsidiaries, and the costs of the Plan may be equitably apportioned by the
Committee among the Company and the other Employers. Whenever an Employer is
permitted or required under the terms of the Plan to do or perform any act,
matter or thing, it shall be done and performed by any officer or employee of
the Employers who is thereunto duly authorized by the Employers.
12.8 Construction and Applicable Law. The Plan is intended to
qualify as an "employee stock purchase plan" within the meaning of Section
423(b) of the Code. Any provision of the Plan which is inconsistent with Section
423(b) of the Code shall, without further act or amendment by the Company or the
Committee, be reformed to comply with the requirements of Section 423(b). The
provisions of the Plan shall be construed, administered and enforced in
accordance with such Section and with the laws of the State of California
(excluding California's conflict of laws provisions).
12.9 Captions. The captions contained in and the table of
contents prefixed to the Plan are inserted only as a matter of convenience, and
in no way define, limit, enlarge or describe the scope or intent of the Plan nor
in any way shall affect the construction of any provision of the Plan.
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<PAGE> 13
EXECUTION
IN WITNESS WHEREOF, Fritz Companies, Inc., by its duly
authorized officer, has executed this Plan on the date indicated below.
FRITZ COMPANIES, INC.
Dated: June 28, 1996 By /s/ Jan H. Raymond
----------------------------
Title: Senior Vice-President
20
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Exhibit 5.1
July 3, 1996
Fritz Companies, Inc.
706 Mission Street
San Francisco, CA 94103
Re: Employee Stock Purchase Plan
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection
with the proposed issuance pursuant to the Fritz Companies, Inc. Employee Stock
Purchase Plan (the "Plan"), of up to 100,000 shares of common stock, $.01 par
value ("Common Stock"), of Fritz Companies, Inc., a Delaware corporation (the
"Company").
We have examined instruments, documents, and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy, and completeness of the information, representations,
and warranties contained in the records, documents, instruments, and
certificates we have reviewed.
Based on such examination, we are of the opinion that the
100,000 shares of Common Stock to be issued by the Company pursuant to the Plan
are validly authorized shares of Common Stock, and, when issued in accordance
with the provisions of the Plan, will be legally issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to this Registration Statement on Form S-8 and to the use of our name wherever
it appears in said Registration Statement. In giving such consent, we do not
consider that we are "experts" within the meaning of such term as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission issued thereunder with respect to any part of
the Registration Statement, including this opinion, as an exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe
ORRICK, HERRINGTON & SUTCLIFFE
21
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Exhibit 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Fritz Companies, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Fritz Companies, Inc. of our report dated August 28, 1995, relating to
the consolidated balance sheets of Fritz Companies, Inc. and subsidiaries as of
May 31, 1995, and December 31, 1994 and 1993, and the related statements of
operations, stockholders' equity, and cash flows for the five months ended May
31, 1995, and for each of the years in the three-year period ended December 31,
1994, and related schedule, which report appears in the May 31, 1995,
transition report on Form 10-K of Fritz Companies, Inc.
/s/ KPMG Peat Marwick LLP
San Francisco, California
July 2, 1996
22
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY OF DIRECTORS
KNOW BY ALL PERSONS BY THESE PRESENTS:
Each of the undersigned hereby constitutes and appoints Lynn
C. Fritz and Jan H. Raymond, and each of them with power to act alone, his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a Registration Statement on Form S-8 relating to
100,000 shares of common stock issuable under the Fritz Companies, Inc. Employee
Stock Purchase Plan, and any and all amendments of such Registration Statement,
including post-effective amendments, and to file the same, together with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorney-in-fact full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises hereof, as fully to all intents
and purposes as he or she might do or could do in person, thereby ratifying and
confirming all that said attorney-in-fact or his or her substitutes may lawfully
do or cause to be done by virtue hereof.
/s/ Lynn C. Fritz
- -------------------------------
Lynn C. Fritz June 28, 1996
/s/ James Gilleran
- -------------------------------
James Gilleran June 28, 1996
/s/ Ronald A. Marcillac
- -------------------------------
Ronald A. Marcillac June 28, 1996
/s/ Preston Martin
- -------------------------------
Preston Martin June 28, 1996
/s/ Dennis L. Pelino
- -------------------------------
Dennis L. Pelino June 28, 1996
23
