As filed with the Securities and Exchange Commission on October 23, 2000
Registration No. 333-____
===============================================================================
DOCSSF1:484101.1
5582-5 YJ1
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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, San Francisco, CA 94103
(Address of principal executive offices) (Zip Code)
FRITZ COMPANIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
1992 OMNIBUS EQUITY INCENTIVE PLAN
(Full title of the plans)
Jan H. Raymond
General Counsel
FRITZ COMPANIES, INC.
706 Mission Street
San Francisco, California 94103
(Name and address of agent for service)
(415) 538-0420
(Telephone number, including area code, of agent for service)
Copy to:
Paul Borden, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
--------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================== ================= ======================= ========================= =================
Amount Proposed Maximum Proposed Maximum
Title of Securities to to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share (1) Price (1) Registration Fee
<S> <C> <C> <C> <C>
-------------------------- ----------------- ----------------------- ------------------------- -----------------
----------------------------------------------------------------------------------------------------------------------------
Common Stock (Employee 200,000 shares $8.50 (2) $1,700,000 (2) $448.80
Stock Purchase Plan)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Common Stock 2,000,000 shares $8.50 (3) $17,000,000 (3) $4,488.00
(1992 Omnibus Equity
Incentive Plan)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
TOTAL 2,200,000 shares $4,936.80
============================================================================================================================
</TABLE>
<PAGE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of $8.50per share, the average of the high and low prices for the
Common Stock on October 19, 2000 as reported by the NASDAQ Stock Exchange,
multiplied by 90%, which is the percentage of the trading purchase price
applicable to purchases under the Plan.
(3) Estimated solely for the purpose of calculating the registration fee on the
basis of $8.50 per share, the average of the high and low prices for the
Common Stock on October 19, 2000 as reported by the NASDAQ Stock Exchange.
<PAGE>
DOCSSF1:484101.1
5582-5 YJ1 8
DOCSSF1:484101.1
5582-5 YJ1 3
PART I
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 Registrant's latest annual report, filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(ii) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
document referred to in (i) above.
(iii) The description of the class of securities to be offered
under this registration statement contained in a registration statement filed
under Section 12 of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Registrant 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.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") authorizes a Delaware corporation to indemnify
officers, directors, employees and agents of the corporation, in connection with
actual or threatened actions, suits or proceedings provided that such officer,
director, employee or agent acted in good faith and in a manner such officer
reasonably believed to be in or not opposed to the corporation's best interests,
and, for criminal proceedings, had no reasonable cause to believe his or her
conduct was unlawful. This authority is sufficiently broad to permit
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act.
The Registrant's Certificate of Incorporation provides for
indemnification of officers and directors to the fullest extent permitted by
Delaware Law.
In addition, the Registrant has, and intends in the future to
enter into, agreements to provide indemnification for directors and officers in
addition to that contained in the Restated Certificate of Incorporation and
By-laws. The Registrant also carries liability insurance covering officers and
directors.
The Registrant's Employee Stock Purchase Plan (the "ESPP")
contains indemnification provisions, indemnifying the ESPP's named fiduciaries
and any other officers or employees of the Registrant to which fiduciary duties
have been delegated arising out of an alleged breach of their fiduciary duties
under the ESPP and under ERISA, except those involving gross negligence or
willful misconduct. The Registrant's 1992 Omnibus Equity Incentive Plan (the
"1992 Plan") provides for the indemnification of the members of the Board of
Directors of the Registrant and members of the 1992 Plan administration
committee of the Board.
Item 7. Exemption From Registration Claimed.
Inapplicable.
Item 8. Exhibits.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 Fritz Companies, Inc. Employee Stock Purchase Plan.
99.2 Amendment Number 3 to the Fritz Companies, Inc. 1992 Omnibus Equity
Incentive Plan (Amended May 17, 1994).
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;
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(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 an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
<PAGE>
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 19th
day of October, 2000.
FRITZ COMPANIES, INC.
(Registrant)
By:
/s/ John R. Skidmore
Vice President, Human Resources
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jan Raymond 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 any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or her substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Principal Executive Officer:
_________________________ October 20, 2000
/s/ Raymond L. Smith Chief Executive Officer
Principal Financial Officer:
_________________________ October 20, 2000
/s/ Ronald F. Dutt Executive Vice President and
Chief Financial Officer
Principal Accounting Officer:
_________________________ October 20, 2000
/s/ Janice J. Washburn Vice President, Controller
and Chief Accounting Officer
Directors:
---------------------------------
/s/ Lynn C. Fritz Director October 20, 2000
---------------------------------
/s/ James Gilleran Director October 20, 2000
------------------------------------------
/s/ Preston Martin Director October 20, 2000
------------------------------------------
/s/ Paul S. Otellini Director October 20, 2000
------------------------------------------
/s/ William J. Razzouk Director October 20, 2000
A majority of the members of the Board of Directors.
<PAGE>
EXHIBIT INDEX
Exhibit Sequentially
No. Numbered Page
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP
is included in Exhibit 5.1 to this Registration
Statement.
24.1 Power of Attorney (included on signature page).
99.1 Fritz Companies, Inc. Employee Stock Purchase Plan.
99.2 Amendment Number 3 to the Fritz Companies, Inc.
1992 Omnibus Equity Incentive Plan
(Amended May 17, 1994).
<PAGE>
13
DOCSSF1:62898.11
DOCSSF1:62898.11
EXHIBIT 5.1
Opinion of Orrick, Herrington & Sutcliffe LLP
[Letterhead of Orrick, Herrington & Sutcliffe]
October 23, 2000
Fritz Companies, Inc.
706 Mission Street
San Francisco, California 94103
Attention: Jan H. Raymond
General Counsel
Dear Sir:
Fritz Companies, Inc., a Delaware corporation, has requested
our opinion in connection with a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by it today with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to the shares of Common Stock, $.01 par value, of
Fritz Companies, Inc. to be issued under the Fritz Companies, Inc. Employee
Stock Purchase Plan and the 1992 Omnibus Equity Incentive Plan (the "Plans").
We have examined and are relying on originals, or copies
certified or otherwise identified to our satisfaction, of such corporate records
and such other instruments, certificates and representations of public
officials, officers and representatives of Fritz Companies, Inc. and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinion expressed below.
Based on the foregoing, it is our opinion that the shares of
Fritz Companies, Inc. issuable under the Plans are duly authorized and, when
issued in accordance with the terms of the Plans, at prices in excess of the par
value thereof, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. By giving such consent, we do not thereby admit
that we are experts with respect to any part of the Registration Statement,
including this exhibit, within the meaning of the term "expert" as used in the
Act or the rules and regulations of the Commission issued thereunder.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors and Stockholders
Fritz Companies, Inc.
We consent to incorporation by reference in this registration statement on Form
S-8 of Fritz Companies, Inc. of our report dated June28, 2000, relating to the
consolidated balance sheets of Fritz Companies, Inc. as of May 31, 2000 and May
31, 1999 and the related consolidated statements of operations, stockholders'
equity and comprehensive income and cash flows for each of the years in the
three-year period ended May 31, 2000, which report appears in the May 31, 2000
annual report on Form 10-K of Fritz Companies, Inc.
KPMG LLP
San Francisco, California
October 19, 2000
<PAGE>
EXHIBIT 99.1
Fritz Companies, Inc.
Employee Stock Purchase Plan
SECTION 1
PURPOSE
Fritz Companies, Inc. (the "Company") established The Fritz
Companies, Inc. Employee Stock Purchase Plan (the "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 Company hereby amends and restates the Plan effective as
of September 27, 2000, except as provided otherwise herein. 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 of Employees and/or members of the
Board. 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.
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 three months of service
(one year of service prior to September 27, 2000) 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 three months of service (one
year service prior to September 27, 2000) 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 such 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 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, [except that the Plan Year commencing August 1, 2000 shall end on
December 31, 2000, and each Plan Year thereafter shall be the calendar year].
2.16 "Plan Year Quarter" means, for any period ending prior to
December 31, 2000, 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. The
Plan Year Quarter commencing November 1, 2000 shall end on December 31, 2000;
for options granted thereafter, Plan Year Quarters shall comprise any of the
following four periods of three consecutive months: (a) January 1 through March
31, (b) April 1 through June 30, (c) July 1 through September 30 and (d) October
1 through December 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. Effective as of September 27, 2000, an additional 200,000 shares of
Common Stock shall be available for issuance under the Plan. Shares sold under
the Plan may be newly issued shares, treasury shares or shares purchased on the
open market.
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.
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.
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;
(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 on or after September 27, 2000, the funds then credited to each
Participant's account shall be transferred to a custodian or broker designated
by the Committee, along with sufficient cash provided by the Company to permit
the purchase at fair market value on the open market by such custodian or broker
of the number of shares of Common Stock sufficient to cause the effective
purchase price paid by the Participant (not including any amount paid by the
Company) for such shares to equal the price per share as specified below in this
Section 6.1. 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 paid by the Participant
(without regard to any cash provided by the Company) for 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 paid by the Participant
(without regard to any cash provided by the Company) 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 paid by the Participant 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 held by a custodian or broker designated by the Committee to hold such
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 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.
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.
<PAGE>
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:
(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.
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.
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 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.
SECTION 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: _________________, 2000 By________________________
Title:
<PAGE>
FRITZ COMPANIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
DOCSSF1:62898.11
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 PURPOSE.............................................................1
SECTION 2 DEFINITIONS.........................................................1
2.1 "1934 Act"......................................................1
2.2 "Board".........................................................1
2.3 "Code"..........................................................1
2.4 "Committee".....................................................1
2.5 "Common Stock"..................................................1
2.6 "Company".......................................................1
2.7 "Compensation" .................................................2
2.8 "Eligible Employee".............................................2
2.9 "Employee"......................................................2
2.10 "Employer" or "Employers".......................................2
2.11 "Enrollment Date"...............................................2
2.12 "Grant Date"....................................................2
2.13 "Participant"...................................................2
2.14 "Plan"..........................................................2
2.15 "Plan Year".....................................................2
2.16 "Plan Year Quarter".............................................3
2.17 "Purchase Date".................................................3
2.18 "Subsidiary"....................................................3
SECTION 3 SHARES SUBJECT TO THE PLAN..........................................3
3.1 Number Available................................................3
3.2 Adjustments.....................................................3
SECTION 4 ENROLLMENT..........................................................3
4.1 Participation...................................................3
4.2 Payroll Withholding.............................................4
SECTION 5 OPTIONS TO PURCHASE COMMON STOCK....................................4
5.1 Grant of Option.................................................4
5.2 Duration of Option..............................................4
5.3 Number of Shares Subject to Option..............................4
5.4 Other Terms and Conditions......................................5
SECTION 6 PURCHASE OF SHARES..................................................5
6.1 Exercise of Option..............................................5
6.2 Crediting of Shares.............................................6
6.3 Exhaustion of Shares............................................6
SECTION 7 WITHDRAWAL..........................................................6
SECTION 8 CESSATION OF PARTICIPATION..........................................7
SECTION 9 DESIGNATION OF BENEFICIARY..........................................7
9.1 Designation.....................................................7
9.2 Changes.........................................................7
9.3 Failed Designations.............................................7
SECTION 10 ADMINISTRATION.....................................................8
10.1 Plan Administrator..............................................8
10.2 Actions by Committee............................................8
10.3 Powers of Committee.............................................8
10.4 Decisions of Committee..........................................9
10.5 Administrative Expenses.........................................9
10.6 Eligibility to Participate......................................9
10.7 Indemnification.................................................9
SECTION 11 AMENDMENT, TERMINATION AND DURATION................................9
11.2 Duration of the Plan...........................................10
SECTION 12 GENERAL PROVISIONS................................................10
12.1 Participation by Subsidiaries..................................10
12.2 Inalienability.................................................10
12.3 Severability...................................................10
12.4 Requirements of Law............................................10
12.5 Compliance with Rule 16b-3.....................................10
12.6 No Enlargement of Employment Rights............................11
12.7 Apportionment of Costs and Duties..............................11
12.8 Construction and Applicable Law................................11
12.9 Captions.......................................................11
SECTION 13 EXECUTION.........................................................11
<PAGE>
DOCSSF1:484101.1
5582-5 YJ1
DOCSSF1:484101.1
5582-5 YJ1
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this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
<PAGE>
EXHIBIT 99.2
Fritz Companies, Inc.
Amendment Number 3 to the
1992 Omnibus Equity Incentive Plan
(Amended May 17, 1994)
FRITZ COMPANIES, INC., having adopted the Fritz Companies,
Inc. 1992 Omnibus Equity Incentive Plan (the "Plan"), effective as of October
10, 1992, and amended and restated the Plan on one subsequent occasion, hereby
amends the restated Plan, effective as of October 16, 2000 by deleting the
numeral 4,520,000 from the first paragraph of Section 4.1 thereof in each place
where it appears and substituting the numeral 6,520,000 therefor.
IN WITNESS WHEREOF, Fritz Companies, Inc., by its duly
authorized officer, has executed this Amendment No. 3 on the date indicated
below.
FRITZ COMPANIES, INC.
Dated: October 16, 2000 By: /s/ Jan Raymond
Title: EVP/General Counsel
<PAGE>
