<PAGE> 1
As Filed With the Securities and Exchange Commission on August 2, 1999
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
EPICOR SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0277592
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
195 Technology Drive, Irvine, California 92618-2402
(Address of Principal Executive Offices) (Zip Code)
EMPLOYEE STOCK PURCHASE PLAN
(Full title of plans)
----------
L. George Klaus, Chief Executive Officer
Epicor Software Corporation
195 Technology Drive
Irvine, California 92618-2402
(Name and address of agent for service)
(949) 585-4000
(Telephone number, including area code, of agent for service)
Copies to:
Perry Tarnofsky, Esq.
Epicor Software Corporation
195 Technology Drive
Irvine, CA 92618-2402
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered (1) per share price registration fee
- ------------------- -------------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value 550,000 shares (2) $2,767,187.50 (2) $769.28
</TABLE>
- ----------
(1) This Registration Statement covers an aggregate of 550,000 shares of
Common Stock which may be issued pursuant to Registrant's Employee
Stock Purchase Plan, as amended (the "Plan"). The 550,000 shares result
from an amendment to the Plan approved on April 29, 1999.
(2) In accordance with Rule 457(h), the aggregate offering price of 550,000
shares of Common Stock registered hereby which would be issued under
the Plan is estimated solely for purposes of calculating the
registration fee, on the basis of the price of securities of the same
class, as determined in accordance with Rule 457(c), using the average
of the high and low price reported by NASDAQ National Market System for
the Common Stock on July 28, 1999, which was $5.03125 per share.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") and are incorporated
herein by reference:
(a) The Registrant's Transition Report on Form 10-K for the transition
period from July 1, 1998 to December 31, 1998.
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(c) Registrant's Current Reports on Form 8-K dated April 26, 1999 and
July 7, 1999.
(d) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the annual report referred to
in (a) above.
(e) The description of the Registrant's Common Stock which is contained
in the Registrant's registration statement on Form 8-A filed on October 15, 1992
pursuant to Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
the filing of such documents; except as to any portion of any future annual or
quarterly report to stockholders or document that is not deemed filed under such
provisions. For the purposes of this registration statement, any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE> 4
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the Second
Restated Certificate of Incorporation eliminates the liability of directors to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent otherwise required by the Delaware
General Corporation Law.
(b) The Amended and Restated Certificate of Incorporation provides that
the Registrant will indemnify each person who was or is made a party to any
proceeding by reason of the fact that such person is or was a director or
officer of the Registrant against all expense, liability and loss reasonably
incurred or suffered by such person in connection therewith to the fullest
extent authorized by the Delaware General Corporation Law. The Registrant's
Amended and Restated Bylaws provide for a similar indemnity to directors and
officers of the Company to the fullest extent authorized by the Delaware General
Corporation Law.
(c) The Registrant has entered into indemnification agreements with
each of its directors and executive officers. The indemnification agreements
provide for the indemnification of directors and executive officers of the
Registrant against any and all expenses, judgments, fines, penalties and amounts
paid in settlement, to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Epicor Software Corporation Employee Stock Purchase Plan, as
amended to date.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati, (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants.
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-4 through II-6).
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 (the
"Securities Act");
(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;
II-2
<PAGE> 5
(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)(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 Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Irvine, State of California, on the 2nd day of
August, 1999.
EPICOR SOFTWARE CORPORATION
By: /s/ L. GEORGE KLAUS
----------------------------------------
L. George Klaus
Chairman of the Board, Chief Executive
Officer and President
II-4
<PAGE> 7
POWER OF ATTORNEY
We, the undersigned officers and directors of Epicor Software
Corporation, do hereby constitute and appoint L. George Klaus and Norman R.
Farquhar, or either of them, our true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite are necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorney-in-fact and agents, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ L. GEORGE KLAUS Chairman of the Board,
- --------------------------- Chief Executive Officer and July 30, 1999
L. George Klaus President
/s/ NORMAN R. FARQUHAR Executive Vice President, Chief
- --------------------------- Financial Officer (Principal July 30, 1999
Norman R. Farquhar Accounting and Financial Officer)
/s/ ARTHUR J. MARKS Director July 30, 1999
- ---------------------------
Arthur J. Marks
Director
- ---------------------------
L. John Doerr
/s/ DONALD R. DIXON Director July 30, 1999
- ---------------------------
Donald R. Dixon
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------ ----------- -----------
<C> <S> <C>
4.1 Epicor Software Corporation Employee Stock Purchase Plan, as amended to
date.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati (Included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants.
24.1 Power of Attorney (Included on the signature page to the Registration
Statement - see pages II-4 and II-5.)
</TABLE>
II-6
<PAGE> 1
Exhibit 4.1
AMENDED AND RESTATED
PLATINUM SOFTWARE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
This AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN (the "Plan") was
originally established by PLATINUM SOFTWARE CORPORATION (the "Company") and
approved by the Company's Board of Directors on August 26, 1992 and effective as
of the "Effective Date" and is hereby amended and restated effective November 1,
1993.
ARTICLE I
PURPOSE OF THE PLAN
1.1 PURPOSE. The Company has determined that it is in its best
interests to provide an incentive to attract and retain employees and to
increase employee morale by providing a program through which employees may
acquire a proprietary interest in the Company through the purchase of shares of
the common stock of the Company ("Company Stock"). The Plan is established by
the Company to permit employees to subscribe for and purchase directly from the
Company shares of the Company Stock at a discount from the market price, and to
pay the purchase price in installments by payroll deductions. The Plan is
intended to qualify as an "employee stock purchase plan" under Section 423 of
the Internal Revenue Code of 1986, as amended from time to time (the "Code").
The provisions of the Plan are to be construed in a manner consistent with the
requirements of Code Section 423. The Plan is not intended to be an employee
benefit plan under the Employee Retirement Income Security Act of 1974, and
therefore is not required to comply with that Act.
ARTICLE II
DEFINITIONS
2.1 AMENDMENT EFFECTIVE DATE. "Amendment Effective Date" means November
1, 1993.
2.2 COMPENSATION. "Compensation" means the amount indicated on the Form
W-2 issued to an employee by the Company, less any amounts realized from the
exercise of an incentive or nonqualified stock option, or when restricted stock
(or property) held by the Participant either becomes freely transferable or is
no longer subject to a substantial risk of forfeiture.
2.3 COMPANY. "Company" means Platinum Software Corporation, and its
majority owned subsidiaries and wholly owned subsidiaries of its majority owned
subsidiaries, as well as any parent corporation of Platinum Software
Corporation.
2.4 EFFECTIVE DATE. "Effective Date" means the day preceding the
effective date of the Company's first Registration Statement filed with the
Securities and Exchange Commission registering Company Stock.
2.5 EMPLOYEE. "Employee" means each person currently employed by the
Company, any portion of whose income is subject to withholding of income tax or
for whom Social Security retirement contributions are made by the Company and
any person qualifying as a common law employee of the Company.
2.6 ENTRY DATE. "Entry Date" means the first day of each quarter of the
Plan Year (August 1, November 1, February 1 and May 1) coincident with or
immediately following the date on which an Employee satisfies the participation
requirements of Section 3.1, which shall be the first day on which an Employee
who has satisfied the participation eligibility requirements of Section 3.1
shall commence participation in this Plan.
<PAGE> 2
2.7 EXECUTIVE OFFICER. "Executive Officer" means an officer or employee
of the Company, its parent or a significant subsidiary, who is deemed to be an
executive officer as defined in the rules promulgated under the Securities and
Exchange Act of 1934, as amended, specifically including Rule 3b-7 and Rule
16a-1(f).
2.8 5% OWNER. "5% Owner" means an Employee who, immediately after the
grant of any purchase right under the Plan, would own Company Stock or hold
outstanding options to purchase Company Stock possessing 5% or more of the total
combined voting power of all classes of stock of the Company. For purposes of
this Section, the ownership attribution rules of Code Section 425(d) shall
apply.
2.9 OFFERING DATE. "Offering Date" means the first day of each Offering
Period under the Plan.
2.10 OFFERING PERIOD. "Offering Period" means either of the six month
periods commencing on August 1 and terminating on January 31 or commencing on
February 1 and terminating on July 31 each Plan Year.
2.11 PARTICIPANT. "Participant" means an Employee who has satisfied the
eligibility requirements of Section 3.1 and has become a participant in the Plan
in accordance with Section 3.2.
2.12 PLAN YEAR. "Plan Year" means the twelve-month period ending on
July 31.
2.13 PURCHASE DATE. "Purchase Date" means the last day of each Offering
Period, January 31 or July 31.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Each Employee of the Company may become a participant
in the Plan as of the first Entry Date occurring coincident with or immediately
following the later of the date upon which the Employee has completed nine
consecutive months of employment with the Company or the date on which the
Employee attains age twenty-one.
3.2 PARTICIPATION. An Employee who has satisfied the eligibility
requirements of Section 3.1 may become a Participant in the Plan upon the
applicable Entry Date provided that he has completed and delivered to the Human
Resources Department a subscription agreement provided by the Company (the
"Subscription Agreement") authorizing payroll deductions. Payroll deductions for
a Participant shall commence on the Entry Date coincident with or next following
the filing of the Participant's Subscription Agreement and shall remain in
effect until revoked by the Participant by the filing of a notice of withdrawal
from the Plan under Article VIII or by the filing of a new Subscription
Agreement providing for a change in the Participant's payroll deduction rate
under Section 5.2.
3.3 SPECIAL RULES. Under no circumstances shall:
(a) A 5% Owner be granted a right to purchase Company Stock under the
Plan;
(b) An Executive Officer or member of the Board of Directors of the
Company be granted a right to purchase Company Stock under the Plan; or
(c) A Participant be entitled to purchase Company Stock under the Plan
which, when aggregated with all other employee stock purchase plans of the
Company, exceeds an amount equal to the Aggregate Maximum. "Aggregate Maximum"
means an amount equal to $25,000 worth of Company Stock (determined using the
fair market value of such Company Stock at the time the right to purchase is
granted) multiplied by the number of whole or partial calendar years in which
the Participant is or was a Participant in the Plan.
<PAGE> 3
ARTICLE IV
OFFERINGS
4.1 OFFERINGS. The first Offering Period shall commence on the
Amendment Effective Date and terminate on July 31, 1994. Thereafter, the Plan
shall provide grants of purchase rights commencing on the first day of the Plan
Year (August 1) and on the first day of the seventh month of the Plan Year
(February 1) and terminating on the next Purchase Date.
ARTICLE V
PAYROLL DEDUCTIONS
5.1 PARTICIPANT ELECTION. Upon the Subscription Agreement, each
Participant shall designate the amount of payroll deductions to be made from his
paycheck to purchase Company Stock under the Plan. The amount of payroll
deductions shall be designated in whole percentages of Compensation, not to
exceed 5% of Compensation. The amount so designated upon the Subscription
Agreement shall be effective as of the next Offering Date and shall continue
until terminated or altered in accordance with Section 5.2 below.
5.2 CHANGES IN ELECTION. Any Participant may change any election under
this Section one time in any Plan Year. A Participant may terminate
participation in the Plan at any time prior to a Purchase Date as provided in
Article VIII. A Participant may decrease the rate of payroll deductions (to an
amount that is not below 1% of Compensation) at any time during any Offering
Period by completing and delivering to the Human Resources Department a new
Subscription Agreement setting forth the desired change. Any change under this
Section shall become effective on the next payroll period (to the extent
practical under the Company's payroll practices) following the delivery of the
new Subscription Agreement.
5.3 PARTICIPANT ACCOUNTS. The Company shall establish and maintain a
separate account ("Account") for each Participant. The amount of each
Participant's payroll deductions shall be credited to his Account. No interest
will be paid or allowed on amounts credited to a Participant's Account. All
payroll deductions received by the Company under the Plan are general corporate
assets of the Company and may be used by the Company for any corporate purpose.
The Company is not obligated to segregate such payroll deductions.
ARTICLE VI
GRANT OF PURCHASE RIGHTS
6.1 RIGHTS OF PURCHASE. On each Offering Date, each Participant shall
be granted a right to purchase at the price determined under Section 6.2 all or
part of the number of full shares of Company Stock that can be purchased based
upon that price with the amounts held in his Account. Any amounts held in the
Participant's Account that are not used to purchase Company Stock shall remain
in the Participant's Account and shall be eligible to purchase Company Stock in
any subsequent Offering Period.
6.2 PURCHASE PRICE. The "Purchase Price" for any offering means the
lesser of:
(a) 85% of the Fair Market Value of Company Stock on the
Offering Date; or
(b) 85% of the Fair Market Value of Company Stock on the
Purchase Date.
"Fair Market Value" of Company Stock shall mean the per share price of
the last sale of such stock in the over-the-counter market as reported on the
NASDAQ National Market System. If the Company Stock is listed for trading on an
exchange, the fair market value shall be the last reported sale price of the
Company Stock on the principal stock exchange on which the Company Stock is
traded on that date. If no trading occurred on such date, the fair market value
shall be the mean between the representative closing bid and asked prices for
the Company Stock on such exchange or in the over-the-counter market, as the
case may be, on that date, or, if such securities'
<PAGE> 4
markets were closed on that date, on the next preceding date on which such
securities' markets were open for trading.
ARTICLE VII
PURCHASE OF STOCK
7.1 EXERCISE OF PURCHASE RIGHTS. Absent a withdrawal of the Participant
from the Plan under Article VIII or a termination of Participant payroll
deductions under Section 5.2, on each Purchase Date of any Offering Period each
Participant will be deemed to exercise the purchase right expiring on that
Purchase Date. The Plan shall purchase on behalf of each Participant the maximum
number of full shares of Company Stock as can be purchased with the amounts held
in each Participant's Account at the applicable Purchase Price. Any amounts
remaining in a Participant's Account shall be held in the Participant's Account
and carried forward to the next Offering Period.
7.2 DELIVERY OF COMPANY STOCK. As soon as practicable after the
exercise of a purchase right on a Purchase Date, the Company will deliver to
each Participant a stock certificate or certificates issued in his name for the
number of shares of Company Stock purchased. The time of issuance and delivery
of shares may be postponed for such period as may be necessary to comply with
the registration requirements under the Securities Act of l933, as amended, the
listing requirements of any securities exchange on which the Company Stock may
then be listed, or the requirements under other laws or regulations applicable
to the issuance or sale of such shares.
ARTICLE VIII
WITHDRAWAL
8.1 IN SERVICE WITHDRAWALS. At any time prior to a Purchase Date of an
Offering Period, any Participant may withdraw the amounts held in his Account by
executing and delivering to the Committee written notice of withdrawal on the
form provided by the Company. In such a case, the entire balance of the
Participant's Account shall be paid to the Participant, without interest, as
soon as is practicable. Upon such notification, that Participant shall cease to
participate in the Plan for the remainder of the Offering Period in which the
notice is given. Any Employee who has withdrawn under this Section shall be
excluded from participation in the Plan for the remainder of the Offering Period
in which the notice is given and the next succeeding Offering Period, but may be
reinstated as a Participant in the next subsequent Offering Period by executing
and delivering a new Subscription Agreement to the Committee.
8.2 TERMINATION OF EMPLOYMENT.
(a) In the event that a Participant's employment with the Company
terminates by any reason other than the death of the Participant, the
Participant shall cease to participate in the Plan on the date of termination.
As soon as is practical following the date of termination, the entire balance of
the Participant's Account shall be paid to the Participant, without interest.
(b) In the event that a Participant's employment with the Company
terminates by reason of the death of the Participant, the Participant shall
cease to participate in the Plan on the date of death. As soon as is practical
following the Participant's death, the entire balance of the Participant's
Account shall be paid to the Participant's beneficiary, without interest.
(c) A Participant may file a written designation of a beneficiary who
is to receive any shares of Company Stock purchased under the Plan or any cash
from the Participant's Account in the event of his death subsequent to a
Purchase Date, but prior to delivery of such shares and cash. In addition, a
Participant may file a written designation of a beneficiary who is to receive
any cash from the Participant's Account under the Plan in the event of his death
prior to a Purchase Date under paragraph (b) above.
<PAGE> 5
(d) Any beneficiary designation under paragraph (c) above may be
changed by the Participant at any time by written notice. In the event of the
death of a Participant, the Committee may rely upon the most recent beneficiary
designation it has on file as being the appropriate beneficiary. In the event of
the death of a Participant and no valid beneficiary designation exists or the
beneficiary has predeceased the Participant, the Committee shall deliver any
cash or shares of Company Stock to the executor or administrator of the estate
of the Participant, or if no such executor or administrator has been appointed
to the knowledge of the Committee, the Committee, in its sole discretion, may
deliver such shares of Company Stock or cash to the spouse of any one or more
dependents or relatives of the Participant, or if no spouse, dependent or
relative is known to the Committee, then to such other person as the Committee
may designate.
ARTICLE IX
SPECIAL PRE-AMENDMENT RULES
9.1 DEFINITIONS. For purposes of this Article, the following
definitions apply:
(A) GRANDFATHERED PURCHASE RIGHT. "Grandfathered Purchase Right" means
the five Rights of Purchase granted under Section 6.1 of the Plan prior to the
Amendment Effective Date.
(B) MANDATORY PURCHASE DATE. "Mandatory Purchase Date" means the last
day of each 24-Month Offering Period.
(C) SPECIAL PARTICIPANT. "Special Participant" means any Participant
who was granted a Grandfathered Purchase Right under the Plan.
(D) 24-MONTH OFFERING PERIOD. "24-Month Offering Period" means the
initial Offering Period commencing on the Effective Date and terminating January
31, 1994, and the four additional consecutive twenty-four month Offering Periods
commencing on the first day of each fiscal quarter (August 1, November 1,
February 1 and May 1).
9.2 ELIGIBILITY. The Plan was amended effective on the Amendment
Effective Date to simplify the administration of the Plan. It is intended that
each Special Participant retain all rights and benefits under the Plan in effect
prior to the Amendment Effective Date. Each Special Participant shall be
entitled to exercise each Grandfathered Purchase Right in accordance with the
provisions of this Article.
9.3 OFFERINGS PRIOR TO NOVEMBER 1, 1993. There are five Grandfathered
Offerings with 24-Month Offering Periods. The initial 24-Month Offering Period
shall commence on the Effective Date and terminate January 31, 1994. Thereafter,
the Plan shall provide four additional 24-Month Offering Periods commencing on
the first day of each fiscal quarter (August 1, November 1, February 1 and May
1) following the Effective Date and terminating twenty-four months later on the
last day of the fiscal quarter (October 31, January 31, April 30 and July 31).
9.4 RIGHTS OF PURCHASE. Each Special Participant was granted a right to
purchase at the price determined under Section 6.2 (using the first day of the
24-Month Offering Period as the Offering Date and the last day of the 24-Month
Offering Period as the Purchase Date) all or part of the number of full shares
of Company Stock that can be purchased based upon that price with the amounts
held in his Account. Any amounts held in the Special Participant's Account that
are not used to purchase Company Stock shall remain in the Special Participant's
Account and shall be eligible to purchase Company Stock in any subsequent
24-Month Offering Period or Offering Period. Each Grandfathered Purchase Right
shall be exercisable one time only.
9.5 PURCHASE PRICE. As used in Section 6.2, the "Fair Market Value" for
the initial Offering Period in Section 9.4 shall be the initial public offering
price established pursuant to the Registration Statement filed with the
Securities Exchange Commission registering Company Stock.
<PAGE> 6
9.6 EXERCISE OF PURCHASE RIGHTS.
(a) During the period a Special Participant has a right to purchase
Company Stock under any Grandfathered Purchase Right, all amounts allocated to
the Special Participants Account shall be accumulated until the Mandatory
Purchase Date. Unless directed otherwise by a Special Participant, on the
Mandatory Purchase Date the Special Participant will be deemed to exercise the
Grandfathered Purchase Right expiring on that Mandatory Purchase Date. The Plan
shall purchase on behalf of each Special Participant the maximum number of full
shares of Company Stock as can be purchased with the amounts held in each
Special Participant's Account at the applicable Purchase Price.
(b) During the period described in paragraph (a) above, the deemed
exercise of purchase rights under Section 7.1 above will not apply to that
Special Participant. Such Special Participant shall be entitled to exercise any
purchase rights under Section 7.1, but must do so by completing and delivering
to the Human Resources Department written notice directing such an exercise.
(c) On any Purchase Date prior to the Mandatory Purchase Date, any
Grandfathered Purchase Right may be exercised by a Special Participant effective
on any Purchase Date by providing a written election of such exercise to the
Human Resources Department. Such election shall designate the Grandfathered
Purchase Right that the Special Participant is exercising.
9.7 IN SERVICE WITHDRAWALS. At any time prior to the Mandatory Purchase
Date of a Grandfathered Purchase Right, any Special Participant may withdraw the
amounts held in his Account by executing and delivering to the Committee written
notice of withdrawal on the form provided by the Company. In such a case, the
entire balance of the Special Participant's Account shall be paid to the Special
Participant, without interest, as soon as is practicable. Upon such
notification, that Special Participant shall cease to participate in the Plan
for the remainder of the Plan Year in which the notice is given and all
Grandfathered Purchase Rights will be forfeited. Any Employee who has withdrawn
under this Section shall be excluded from participation in the Plan for the
remainder of the Plan Year, but may be reinstated as a Participant in the next
Plan Year for a subsequent Offering Period by executing and delivering a new
Subscription Agreement to the Committee.
ARTICLE X
PLAN ADMINISTRATION
10.1 PLAN ADMINISTRATION.
(a) Authority to control and manage the operation and administration of
the Plan shall be vested in the Company. The Company shall have all powers
necessary to supervise the administration of the Plan and control its
operations.
(b) In addition to any powers and authority conferred on the Company
elsewhere in the Plan or by law, the Company shall have the following powers and
authority:
(i) To designate agents to carry out responsibilities relating
to the Plan;
(ii) To administer, interpret, construe and apply this Plan
and to answer all questions which may arise or which may be raised
under this Plan by a Participant, his beneficiary or any other person
whatsoever;
(iii) To establish rules and procedures from time to time for
the conduct of its business and for the administration and effectuation
of its responsibilities under the Plan; and
(iv) To perform or cause to be performed such further acts as
it may deem to be necessary, appropriate, or convenient for the
operation of the Plan.
<PAGE> 7
(c) Any action taken in good faith by the Board in the exercise of
authority conferred upon it by this Plan shall be conclusive and binding upon a
Participant and his beneficiaries. All discretionary powers conferred upon the
Board shall be absolute.
10.2 LIMITATION ON LIABILITY. No Employee of the Company or member of
the Board of Directors for the Company shall be subject to any liability with
respect to his duties under the Plan unless the person acts fraudulently or in
bad faith. To the extent permitted by law, the Company shall indemnify each
member of the Board of Directors, and any other Employee of the Company with
duties under the Plan who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed proceeding, whether civil,
criminal, administrative, or investigative, by reason of the person's conduct in
the performance of his duties under the Plan.
ARTICLE XI
COMPANY STOCK
11.1 LIMITATIONS ON PURCHASE OF SHARES. The maximum number of shares of
Company Stock that shall be made available for sale under the Plan shall be
450,000 shares, subject to adjustment under Section 11.4 below. The shares of
Company Stock to be sold to Participants under the Plan will be either treasury
shares or shares authorized but unissued. If the total number of shares of
Company Stock that would otherwise be issuable pursuant to rights of purchase
granted pursuant to Sections 6.1 and 9.4 of the Plan at the Purchase Date
exceeds the number of shares then available under the Plan, the Company shall
make a pro rata allocation of the shares remaining available in as uniform and
equitable a manner as is practicable. In such event, the Company shall give
written notice of such reduction of the number of shares to each participant
affected thereby and any unused payroll deductions shall be returned to such
participant, if necessary.
11.2 VOTING COMPANY STOCK. The Participant will have no interest or
voting right in any shares covered by any right to purchase under Section 6.1 or
9.4 of the Plan until such purchase right has been exercised.
11.3 REGISTRATION OF COMPANY STOCK. Shares to be delivered to a
Participant under the Plan will be registered in the name of the Participant or
in the name of the Participant and his spouse.
11.4 CHANGES IN CAPITALIZATION OF THE COMPANY. Subject to any required
action by the shareholders of the Company, the number of shares of Company Stock
covered by each right to purchase under the Plan which has not yet been
exercised and the number of shares of Company Stock which have been authorized
for issuance under the Plan but have not yet been granted to Participants or
which have been returned to the Plan upon the cancellation of a Participant's
participation in the Plan, as well as the Purchase Price per share of Company
Stock covered by each right of purchase under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Company Stock resulting from a stock split, stock
dividend, spin-off, reorganization, recapitalization, merger, consolidation,
exchange of shares or the like. Such adjustment shall be made by the Board of
Directors for the Company, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Company Stock subject
to a right of purchase under the Plan.
11.5 MERGER OF COMPANY. In the event that the Company at any time
proposes to merge into, consolidate with or to enter into any other
reorganization (including the sale of substantially all of its assets or a
"reverse" merger in which the Company is the surviving entity), the Plan shall
terminate, unless provision is made in writing in connection with such
transaction for the continuance of the Plan and for the assumption of the rights
of purchase theretofore granted, or the substitution for such rights of purchase
of new rights of purchase covering the shares of a successor corporation, with
appropriate adjustments as to number and kind of shares and prices, in which
event the Plan and the rights of purchase theretofore granted or the new rights
of purchase substituted therefor, shall continue in the manner and under the
terms so provided. If such provision is not made in such transaction for the
continuance of the Plan and the assumption of the rights of purchase theretofore
granted or the substitution for such rights of purchase of new rights of
purchase covering the shares of a successor corporation, then the Board of
Directors or its committee shall cause written notice of the proposed
transaction to be given to the persons holding
<PAGE> 8
rights of purchase not less than ten days prior to the anticipated effective
date of the proposed transaction, and all rights of purchase shall be
accelerated and, concurrent with the effective date of the proposed transaction,
such rights of purchase shall be exercised automatically in accordance with
Section 7.1 as if such effective date were a Purchase Date of the applicable
Offering Period unless a Participant withdraws from the Plan as provided in
Section 8.1.
ARTICLE XII
MISCELLANEOUS MATTERS
12.1 AMENDMENT AND TERMINATION. The Plan shall terminate on December
31, 2000. Since future conditions affecting the Company cannot be anticipated or
foreseen, the Company reserves the right to amend, modify, or terminate the Plan
at any time. Upon termination of the Plan, all benefits shall become payable
immediately. Notwithstanding the foregoing, no such amendment or termination
shall affect rights of purchase previously granted, nor may an amendment make
any change in any right of purchase previously granted which adversely affects
the rights of any Participant. In addition, no amendment may be made without
prior approval of the shareholders of the Company if such amendment would:
(a) Increase the number of shares of Company Stock that may be
issued under the Plan;
(b) Materially modify the requirements as to eligibility for
participation in the Plan; or
(c) Materially increase the benefits which accrue to
Participants under the Plan.
12.2 SHAREHOLDER APPROVAL. Continuance of the Plan and the
effectiveness of any right of purchase granted hereunder shall be subject to
approval by the affirmative vote or written consent of the holders of a majority
of the outstanding shares of stock of the Company present or represented and
entitled to vote thereon, within twelve months before or after the date the Plan
is adopted by the Board of Directors for the Company.
12.3 BENEFITS NOT ALIENABLE. Benefits under the Plan may not be
assigned or alienated, whether voluntarily or involuntarily. Any attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Article VIII.
12.4 NO ENLARGEMENT OF EMPLOYEE RIGHTS. This Plan is strictly a
voluntary undertaking on the part of the Company and shall not be deemed to
constitute a contract between the Company and any Employee or to be
consideration for, or an inducement to, or a condition of, the employment of any
Employee. Nothing contained in the Plan shall be deemed to give the right to any
Employee to be retained in the employ of the Company or to interfere with the
right of the Company to discharge any Employee at any time.
12.5 GOVERNING LAW. To the extent not preempted by federal law, all
legal questions pertaining to the Plan shall be determined in accordance with
the laws of the State of California.
<PAGE> 9
AMENDMENT TO EPICOR SOFTWARE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
The undersigned certifies that he is the duly elected and acting
Secretary of Epicor ("Company") and that the following amendments were made to
the Company's Employee Stock Purchase Plan effective April 29, 1999.
1. Section 11.1 of the Plan is revised to read in full as follows:
"11.1 Limitations on Purchase of Shares. The maximum number of shares of Company
Stock that shall be made available for sale under the Plan shall be 1,000,000
shares, subject to adjustment under Section 11.4 below. The shares of Company
Stock to be sold to Participants under the Plan will be either treasury shares
or shares authorized but unissued. If the total number of shares of Company
Stock that would otherwise be issuable pursuant to rights of purchase granted
pursuant to Sections 6.1 and 9.4 of the Plan at the Purchase Date exceeds the
number of shares then available under the Plan, the Company shall make a pro
rata allocation of the shares remaining available in as uniform and equitable a
manner as is practicable. In such event, the Company shall give written notice
of such reduction of the number of shares to each participant affected hereby
and any unused payroll deductions shall be returned to such participant, if
necessary."
2. Section 3.1 of the Plan is revised to read in full as follows:
"3.1 Eligibility. Each Employee of the Company may become a participant in the
Plan as of the first Entry Date occurring coincident with or immediately
following the later of the date upon which the Employee has completed three (3)
consecutive months of employment with the Company or the date on which the
Employee attains age twenty-one (21)."
3. Section 5.1 of the Plan is revised to read in full as follows:
"5.1 Participant Election. Upon the Subscription Agreement, each Participant
shall designate the amount of payroll deductions to be made from his paycheck to
purchase Company Stock under the Plan. The amount of payroll deductions shall be
designated in whole percentages of Compensation, not to exceed ten percent (10%)
of Compensation. The amount so designated upon the Subscription Agreement shall
be effective as of the next Offering Date and shall continue until terminated or
altered in accordance with Section 5.2 below."
Date of Board Approval: February 4, 1999
Date of Stockholder Approval: April 29, 1999
----------------------------------------
Perry Tarnofsky
Secretary
<PAGE> 1
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
WWW.WSGR.COM
August 2, 1999
Epicor Software Corporation
195 Technology Drive
Irvine, CA 92618-2402
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Epicor Software Corporation, a Delaware
corporation (the "Company" or "you") and have examined the Registration
Statement on Form S-8 (the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission on or about August 2, 1999 in
connection with the registration under the Securities Act of 1933, as amended
(the "1933 Act") of 550,000 shares of your Common Stock (the "Shares"),
available for sale under the Company's Employee Stock Purchase Plan, as amended
and restated ( the "Plan"). As your legal counsel, we have examined the amended
and restated Certificate of Incorporation and Bylaws of the Company, the Plan
and such other documents of the Company as we have deemed necessary or
appropriate for the purposes of the opinion expressed herein, and are familiar
with the proceedings proposed to be taken by you in connection with the
operation and administration of the Plan and the sale and issuance of the Shares
pursuant to the Plan.
In our opinion, the Shares, when issued and sold in the manner referred
to in the Plan and pursuant to the agreements which accompany the Plan, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any subsequent amendment thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
-----------------------------------------
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement (Form S-8)
pertaining to the Epicor Software Corporation Employee Stock Purchase Plan, as
amended to date, and to the incorporation by reference therein of our report
dated February 4, 1999, with respect to the consolidated financial statements
and schedule of Epicor Software Corporation (formerly named Platinum Software
Corporation) included in its Annual Report (Transition Report on Form 10-K) for
the transition period from July 1, 1998 to December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Orange County, California
July 27, 1999
