<PAGE>
As filed with the Securities and Exchange Commission July __, 1998
Registration No. 33-__________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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FOURTH SHIFT CORPORATION
(Exact name of issuer as specified in its charter)
Minnesota 41-1437794
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7900 International Drive
Minneapolis, Minnesota 55425
(Address of Principal Executive Offices) (Zip Code)
FOURTH SHIFT CORPORATION 1994 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
DAVID G. LATZKE Copy to:
Vice President and Chief Financial Officer Thomas Martin
FOURTH SHIFT Corporation Dorsey & Whitney LLP
7900 International Drive 220 South Sixth Street
Minneapolis, Minnesota 55425 Minneapolis, Minnesota 55402
(Name and address of agent for service) (612) 340-8706
(612) 851-1500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock
$.01 par value 500,000 $3.53 $1,765,625 $521
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</TABLE>
(1) The number of shares being registered represents the number of shares of
Common Stock, in addition to 400,000 shares previously registered, which may be
issued pursuant to the FOURTH SHIFT Corporation 1994 Employee Stock Purchase
Plan.
(2) Estimated solely for the purpose of determining the registration fee, based
upon the average of the high and low prices of the Common Stock as quoted on The
Nasdaq National Market on July 16, 1998.
Pursuant to General Instruction E of the General Instructions to the Form S-8,
this Registration Statement incorporates by reference the Registrant's
Registration Statement on Form S-8 filed June 20, 1994 (File No. 33-80480)
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by FOURTH SHIFT
Corporation (the "Company") with the Securities and Exchange Commission, are
incorporated by reference in this Registration Statement, as of their respective
dates:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997 and the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; and
(b) The description of capital stock contained in any registration
statement or report filed under the Securities Exchange Act of 1934, including
any amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the respective dates of filing of such
documents.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes requires, among other
things, the indemnification of persons made or threatened to be made a party to
a proceeding by reason of acts or omissions performed in their official capacity
as an officer, director, employee or agent of the corporation against judgments,
penalties and fines (including attorneys' fees) if such person is not otherwise
indemnified, acted in good faith, received no improper benefit, believed that
such conduct was in the best interests of the corporation, and, in the case of
criminal proceedings, had no reason to believe the conduct was unlawful. In
addition, Section 302A.521, subd. 3, requires payment by the corporation, upon
written request, or reasonable expenses in advance of final disposition in
certain instances. A decision as to required indemnification is made by a
disinterested majority of the Board of Directors present at a meeting at which a
disinterested quorum is present, or by a designated committee of the Board, by
special legal counsel, by the shareholders or by a court. The bylaws of the
Company provide that the Company shall indemnify such persons, for such
liabilities, in such manner, under such circumstances, and to such extent as
permitted by Section 302A.521, as now enacted or hereafter amended. This
indemnification may include indemnification for liabilities arising under the
Securities Act of 1933.
2
<PAGE>
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 FOURTH SHIFT CORPORATION 1994 EMPLOYEE STOCK PURCHASE
PLAN, as amended
5 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Arthur Andersen LLP.
24.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5
above).
25 Power of Attorney (included in the signature page to
this Registration Statement).
</TABLE>
Item 9. UNDERTAKINGS.
A. POST-EFFECTIVE AMENDMENTS
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 subparagraphs (i) and (ii) above will not apply if the
information required to be included in a post-effective amendment by those
subparagraphs 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.
3
<PAGE>
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE
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. CLAIMS FOR INDEMNIFICATION
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 indemnification provisions described
herein, 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 of 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.
4
<PAGE>
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 Minneapolis, State of Minnesota, on this 21st day of
July, 1998.
FOURTH SHIFT CORPORATION
By: /s/ MARION MELVIN STUCKEY
---------------------------
Marion Melvin Stuckey
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of FOURTH SHIFT Corporation, whose signatures
appear below, hereby constitute and appoint Marion Melvin Stuckey and David G.
Latzke, and each of them (with full power to each of them to act alone), the
true and lawful attorney-in-fact to sign and execute on behalf of the
undersigned, any amendment or amendments to this Registration Statement of
FOURTH SHIFT Corporation, and each of the undersigned does hereby ratify and
confirm all that said attorneys shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C> <C>
/s/ MARION MELVIN STUCKEY Chairman, Chief Executive July 21, 1998
-------------------------- Officer and Director (PRINCIPAL
Marion Melvin Stuckey EXECUTIVE OFFICER)
/s/ JIMMIE H. CALDWELL President, Chief Operating July 21, 1998
-------------------------- Officer and Director
Jimmie H. Caldwell
/s/ DAVID G. LATZKE Vice President--Finance, Chief July 21, 1998
-------------------------- Financial Officer and Secretary
David G. Latzke (PRINCIPAL FINANCIAL OFFICER)
/s/ MOLLY MONROE Controller (PRINCIPAL July 21, 1998
-------------------------- ACCOUNTING OFFICER)
Molly Monroe
/s/ MICHAEL J. ADAMS Director July 21, 1998
--------------------------
Michael J. Adams
/s/ STEVE J. LAIR Director July 21, 1998
--------------------------
Steve J. Lair
/s/ MARK SHEFFERT Director July 21, 1998
--------------------------
Mark Sheffert
/s/ TONY J. CHRISTIANSON Director July 21, 1998
--------------------------
Tony J. Christianson
/s/ ROBERT M. PRICE Director July 21, 1998
--------------------------
Robert M. Price
</TABLE>
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page
- -------------- ----------- ----
<S> <C> <C>
4.1 FOURTH SHIFT CORPORATION 1994 EMPLOYEE STOCK
PURCHASE PLAN, as amended
5 Opinion of Dorsey & Whitney LLP.. . . . . . . . . . . . . .
23.1 Consent of Arthur Andersen LLP. . . . . . . . . . . . . . .
24.2 Consent of Dorsey & Whitney LLP (included in
Exhibit 5 above).
25 Power of Attorney (included in the signature page
to this Registration Statement).
</TABLE>
6
<PAGE>
Exhibit 4.1
FOURTH SHIFT CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I. INTRODUCTION
Section 1.01 PURPOSE. The purpose of the FOURTH SHIFT CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN (the "Plan") is to provide employees and
directors of FOURTH SHIFT CORPORATION, a Minnesota corporation (the "Company"),
and Affiliates with an opportunity to share in the ownership of the Company by
providing them with a convenient means for regular and systematic purchases of
the Company's Common Shares, $.01 par value, and, thus, to develop a stronger
incentive to work for the continued success of the Company.
Section 1.02 RULES OF INTERPRETATION. It is intended that Article I
through Article XII of the Plan be an "employee stock purchase plan" as defined
in Section 423(b) of the Internal Revenue Code of 1986, as amended (the "Code"),
and Treasury Regulations promulgated thereunder. Article XIII of the Plan is
not intended to comply with Section 423(b) and shall not for any purposes of the
Internal Revenue Code be considered part of the Plan. With such exception, the
Plan shall be interpreted and administered in a manner consistent with Section
423(b) of the Code. All Participants in the Plan will have the same rights and
privileges consistent with the provisions of the Plan.
Section 1.03 DEFINITIONS. For purposes of the Plan, the following
terms will have the meanings set forth below:
(a) "ACCELERATION DATE" means the earlier of the date of
shareholder approval or approval by the Company's Board of Directors of (i)
any consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which Company Common
Shares would be converted into cash, securities or other property, other
than a merger of the Company in which shareholders of the Company
immediately prior to the merger have the same proportionate share ownership
in the surviving corporation immediately after the merger; (ii) any sale,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company; or
(iii) any plan of liquidation or dissolution of the Company.
(b) "AFFILIATE" means any subsidiary corporation of the Company,
as defined in Section 424(f) of the Code, whether now or hereafter acquired
or established.
(c) "COMMITTEE" means the committee described in Section 10.01.
(d) "COMPANY" means FOURTH SHIFT Corporation, a Minnesota
corporation, any subsidiary of the Company and any successors to the
Company by merger or consolidation as contemplated by Article XI herein.
(e) "CURRENT COMPENSATION" means all regular wage, salary and
commission payments paid by the Company to a Participant in accordance with
the terms of his or her employment, including bonus payments and all other
forms of compensation.
(f) "FAIR MARKET VALUE" as of a given date means such value of
the Common Shares as reasonably determined by the Committee in a manner
consistent with Section 423 of the Code.
<PAGE>
(g) "PARTICIPANT" means a Full-Time Employee who is eligible to
participate in the Plan under Section 2.01 and who has elected to
participate in the Plan.
(h) "PARTICIPATING AFFILIATE" means an Affiliate which has been
designated by the Committee in advance of the Purchase Period in question
as a corporation whose eligible Full-Time Employees may participate in the
Plan.
(i) "FULL-TIME EMPLOYEE" means an employee of the Company or a
Participating Affiliate as of the first day of a Purchase Period, including
an officer or director who is also an employee, but excluding employees (I)
whose customary employment is less than 20 hours per week, (II) who have
not yet completed one month of employment, or (III) whose customary
employment is not expected to be more than 5 months in a calendar year.
(j) "PLAN" means the FOURTH SHIFT Corporation 1994 Employee
Stock Purchase Plan, as amended, the provisions of which are set forth
herein.
(k) "PURCHASE PERIOD" means the 6-month periods beginning on the
first business day in January and July and ending on the last business day
in the following June or December in each year commencing January 1, 1996;
for 1995, the 12-month period beginning on the first business day in
January 1995 and ending on the last business day in the following December
1995; and for 1994 the nine-month period beginning on April 1, 1994 and
ending on the last business day of December; and provided further that the
then current Purchase Period shall end on any Acceleration Date.
(l) "COMMON SHARES" means the Company's Common Shares, $.01 par
value, as such Shares may be adjusted for changes in the Shares or the
Company as contemplated by Article XI herein.
(m) "SHARE PURCHASE ACCOUNT" means the account maintained on the
books and records of the Company recording the amount received from each
Participant through payroll deductions made under the Plan and from the
Company through matching contributions.
ARTICLE II. ELIGIBILITY AND PARTICIPATION
Section 2.01 ELIGIBLE EMPLOYEES. All Full-Time Employees shall
be eligible to participate in the Plan beginning on the first day of the first
Purchase Period to commence after such person becomes a Full-Time Employee.
Subject to the provisions of Article VI, each such employee will continue to be
eligible to participate in the Plan so long as he or she remains a Full-Time
Employee.
Section 2.02 ELECTION TO PARTICIPATE. An eligible Full-Time
Employee may elect to participate in the Plan for a given Purchase Period by
filing with the Company, in advance of that Purchase Period and in accordance
with such terms and conditions as the Committee in its sole discretion may
impose, a form provided by the Company for such purpose (which authorizes
regular payroll deductions from Current Compensation beginning with the first
payday in that Purchase Period and continuing until the employee withdraws from
the Plan or ceases to be eligible to participate in the Plan).
Section 2.03 LIMITS ON SHARES PURCHASE. No employee shall be
granted any right to purchase Common Shares hereunder if such employee,
immediately after such a right to purchase is granted, would own, directly or
indirectly, within the meaning of Section 423(b)(3) and Section 424(d) of the
Code, Common Shares possessing 5% or more of the total combined voting power or
value of all the classes of the capital shares of the Company or of all
Affiliates.
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<PAGE>
Section 2.04 VOLUNTARY PARTICIPATION. Participation in the Plan
on the part of a Participant is voluntary and such participation is not a
condition of employment nor does participation in the Plan entitle a Participant
to be retained as an employee.
ARTICLE III. PAYROLL DEDUCTIONS, COMPANY
CONTRIBUTIONS AND SHARE PURCHASE ACCOUNT
Section 3.01 DEDUCTION FROM PAY. The form described in Section
2.02 will permit a Participant to elect payroll deductions of not less than 1%
and not more than 15% of such Participant's Current Compensation for each pay
period, subject to such other limitations as the Committee in its sole
discretion may impose.
Section 3.02 INTEREST AND COMPANY CONTRIBUTIONS. The Company
may, in the sole discretion of and subject to such limitations as the Committee
may impose, pay interest with respect to each Participant's Share Purchase
Account.
Section 3.03 CREDIT TO ACCOUNT. Payroll deductions will be
credited to the Participant's Share Purchase Account on each payday.
Section 3.04 NATURE OF ACCOUNT. The Share Purchase Account is
established solely for accounting purposes, and all amounts credited to the
Share Purchase Account will remain part of the general assets of the Company or
the Participating Affiliate (as the case may be).
Section 3.05 NO ADDITIONAL CONTRIBUTIONS. A Participant may not
make any payment into the Share Purchase Account other than the payroll
deductions made pursuant to the Plan.
ARTICLE IV. RIGHT TO PURCHASE SHARES
Section 4.01 NUMBER OF SHARES. Each Participant will have the
right to purchase on the last business day of the Purchase Period all, but not
less than all, of the largest number of whole Common Shares that can be
purchased at the price specified in Section 4.02 with the entire credit balance
in the Participant's Share Purchase Account, subject to the limitations that (a)
no more than 10,000 Common Shares may be purchased under the Plan by any one
Participant for a given Purchase Period, (b) in accordance with Section
423(b)(8) of the Code, no more than $25,000 ($12,500 for Purchase Periods
begining in 1996) in Fair Market Value (determined at the beginning of each
Purchase Period) of Common Shares and other shares may be purchased under the
Plan and all other employee share purchase plans (if any) of the Company and the
Affiliates by any one Participant for any calendar year and (c) if the purchases
for all Participants in any Purchase Period would result in the sale of more
than 50,000 Common Shares in the aggregate under the Plan for such Purchase
Period, each Participant shall be allocated a pro rata portion of the 50,000
Common Shares to be sold for that Purchase Period. If the purchases for all
Participants would otherwise cause the aggregate number of Common Shares to be
sold under the Plan to exceed the number specified in Section 10.03, each
Participant shall be allocated a pro rata portion of the Common Shares to be
sold.
Section 4.02 PURCHASE PRICE. The purchase price for any
Purchase Period shall be the lesser of (a) 85% of the Fair Market Value of the
Common Shares on the first business day of that Purchase Period or (b) 85% of
the Fair Market Value of the Common Shares on the last business day of that
Purchase Period, in each case rounded up to the next higher full cent.
ARTICLE V. EXERCISE OF RIGHT
Section 5.01 PURCHASE OF SHARES. On the last business day of a
Purchase Period, the entire credit balance in each Participant's Share Purchase
Account will be used to purchase the largest number of whole Common Shares
purchasable with such amount (subject to the limitations of Section
-3-
<PAGE>
4.01), unless the Participant has filed with the Company, in advance of that
date and subject to such terms and conditions as the Committee in its sole
discretion may impose, a form provided by the Company which requests the
distribution of the entire credit balance in cash.
Section 5.02 CASH DISTRIBUTIONS. Any amount remaining in a
Participant's Share Purchase Account after the last business day of a Purchase
Period will be paid to the Participant in cash in a timely fashion after the end
of that Purchase Period.
Section 5.03 NOTICE OF ACCELERATION DATE. The Company shall use
its best efforts to notify each Participant in writing at least ten days prior
to any Acceleration Date that the then current Purchase Period will end on such
Acceleration Date.
ARTICLE VI. WITHDRAWAL FROM PLAN; SALE OF SHARES
Section 6.01 VOLUNTARY WITHDRAWAL. A Participant may, in
accordance with such terms and conditions as the Committee in its sole
discretion may impose, withdraw from the Plan and cease making payroll
deductions by filing with the Company a form provided for this purpose. In such
event, the entire credit balance in the Participant's Share Purchase Account
will be paid to the Participant in cash within 30 days. A Participant who
withdraws from the Plan will not be eligible to reenter the Plan until the
beginning of the next Purchase Period following the date of such withdrawal.
Section 6.02 DEATH. Subject to such terms and conditions as the
Committee in its sole discretion may impose, upon the death of a Participant, no
further amounts shall be credited to the Participant's Share Purchase Account.
Thereafter, on the last business day of the Purchase Period during which such
Participant's death occurred and in accordance with Section 5.01, the entire
credit balance in such Participant's Share Purchase Account will be used to
purchase Common Shares, unless such Participant's estate has filed with the
Company, in advance of that day and subject to such terms and conditions as the
Committee in its sole discretion may impose, a form provided by the Company
which elects to have the entire credit balance in such Participant's Shares
Account distributed in cash within 30 days after the end of that Purchase Period
or at such earlier time as the Committee in its sole discretion may decide.
Each Participant, however, may designate one or more beneficiaries who, upon
death, are to receive the Common Shares or the amount that otherwise would have
been distributed or paid to the Participant's estate and may change or revoke
any such designation from time to time. No such designation, change or
revocation will be effective unless made by the Participant in writing and filed
with the Company during the Participant's lifetime. Unless the Participant has
otherwise specified the beneficiary designation, the beneficiary or
beneficiaries so designated will become fixed as of the date of the death of the
Participant so that, if a beneficiary survives the Participant but dies before
the receipt of the payment due such beneficiary, the payment will be made to
such beneficiary's estate.
Section 6.03 TERMINATION OF EMPLOYMENT. Subject to such terms
and conditions as the Committee in its sole discretion may impose, upon a
Participant's normal or early retirement with the consent of the Company under
any pension or retirement plan of the Company or Participating Affiliate, no
further amounts shall be credited to the Participant's Share Purchase Account.
Thereafter, on the last business day of the Purchase Period during which such
Participant's approved retirement occurred and in accordance with Section 5.01,
the entire credit balance in such Participant's Share Purchase Account will be
used to purchase Common Shares, unless such Participant has filed with the
Company, in advance of that day and subject to such terms and conditions as the
Committee in its sole discretion may impose, a form provided by the Company
which elects to receive the entire credit balance in such Participant's Share
Purchase Account in cash within 30 days after the end of that Purchase Period,
provided that such Participant shall have no right to purchase Common Shares in
the event that the last day of such a Purchase Period occurs more than three
months following the termination of such Participant's employment with the
Company by reason of such an approved retirement. In the event of any other
termination of employment (other than death) with the Company
-4-
<PAGE>
or a Participating Affiliate, participation in the Plan will cease on the date
the Participant ceases to be a Full-Time Employee for any reason. In such
event, the entire credit balance in such Participant's Share Purchase Account
will be paid to the Participant in cash within 30 days. For purposes of this
Section 6.03, a transfer of employment to any Affiliate, or a leave of absence
which has been approved by the Committee, will not be deemed a termination of
employment as a Full-Time Employee.
ARTICLE VII. NONTRANSFERABILITY
Section 7.01 NONTRANSFERABLE RIGHT TO PURCHASE. The right to
purchase Common Shares hereunder may not be assigned, transferred, pledged or
hypothecated (whether by operation of law or otherwise), except as provided in
Section 6.02, and will not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition or levy of attachment or similar process upon the right to purchase
will be null and void and without effect.
Section 7.02 NONTRANSFERABLE ACCOUNT. Except as provided in
Section 6.02, the amounts credited to a Share Purchase Account may not be
assigned, transferred, pledged or hypothecated in any way, and any attempted
assignment, transfer, pledge, hypothecation or other disposition of such amounts
will be null and void and without effect.
ARTICLE VIII. SHARE CERTIFICATES
Section 8.01 DELIVERY. Promptly after the last day of each
Purchase Period and subject to such terms and conditions as the Committee in its
sole discretion may impose, the Company will cause to be delivered to or for the
benefit of the Participant a certificate representing the Common Shares
purchased on the last business day of such Purchase Period.
Section 8.02 SECURITIES LAWS. The Company shall not be required
to issue or deliver any certificate representing Common Shares prior to
registration under the Securities Act of 1933, as amended, or registration or
qualification under any state law if such registration is required. The Company
shall use its best efforts to accomplish such registration (if and to the extent
required) not later than a reasonable time following the Purchase Period, and
delivery of certificates may be deferred until such registration is
accomplished.
Section 8.03 COMPLETION OF PURCHASE. A Participant shall have
no interest in the Common Shares purchased until a certificate representing the
same is issued to or for the benefit of the Participant.
Section 8.04 FORM OF OWNERSHIP. The certificates representing
Common Shares issued under the Plan will be registered in the name of the
Participant.
ARTICLE IX. EFFECTIVE DATE, AMENDMENT AND
TERMINATION OF PLAN
Section 9.01 EFFECTIVE DATE. The Plan was approved by the Board
of Directors on January 19, 1994, and shall be approved by the shareholders of
the Company within twelve (12) months thereof. In the event that the Plan is
not so approved by the shareholders of the Company, for any reason, it shall
then be of no force or effect whatsoever, and no Common Shares shall be
purchased hereunder. The Plan will terminate upon completion of the Purchase
Period which ends on the first business day occurring on or after January 19,
2004.
Section 9.02 PLAN COMMENCEMENT. The initial Purchase Period
under the Plan will commence on April 1, 1994. Thereafter, each succeeding
Purchase Period will commence and terminate in accordance with Section 1.03(k).
-5-
<PAGE>
Section 9.03 POWERS OF BOARD. The Board of Directors may amend
or discontinue the Plan at any time. No amendment or discontinuation of the
Plan, however, shall without shareholder approval be made that: (i) absent such
shareholder approval, would cause Rule 16b-3 under the Securities Exchange Act
of 1934, as amended (the "Act") to become unavailable with respect to the Plan,
(ii) requires shareholder approval under any rules or regulations of the
National Association of Securities Dealers, Inc. or any securities exchange that
are applicable to the Company, or (iii) permit the issuance of Common Shares
before payment therefor in full
Section 9.04 AUTOMATIC TERMINATION. The Plan shall
automatically terminate when all of the Common Shares provided for in Section
10.03 have been sold.
ARTICLE X. ADMINISTRATION
Section 10.01 THE COMMITTEE. The Plan shall be administered by
a committee (the "Committee") of two or more directors of the Company. The
members of the Committee shall be appointed by and serve at the pleasure of the
Board of Directors.
Section 10.02 POWERS OF COMMITTEE. Subject to the provisions of
the Plan, the Committee shall have full authority to administer the Plan,
including authority to interpret and construe any provision of the Plan, to
establish deadlines by which the various administrative forms must be received
in order to be effective, and to adopt such other rules and regulations for
administering the Plan as it may deem appropriate. The Committee shall have
full and complete authority to determine whether all or any part of the Common
Shares acquired pursuant to the Plan shall be subject to restrictions on the
transferability thereof or any other restrictions affecting in any manner a
Participant's rights with respect thereto but any such restrictions shall be
contained in the form by which a Participant elects to participate in the Plan
pursuant to Section 2.02. Decisions of the Committee will be final and binding
on all parties who have an interest in the Plan.
Section 10.03 SHARES TO BE SOLD. The Common Shares to be issued
and sold under the Plan may be treasury shares or authorized but unissued
shares, or the Company may purchase Common Shares in the market for sale under
the Plan. Except as provided in Section 11.01, the aggregate number of Common
Shares to be sold under the Plan will not exceed 400,000 shares.
Section 10.04 NOTICES. Notices to the Committee should be
addressed as follows:
Compensation Committee
FOURTH SHIFT Corporation
7900 International Drive
International Plaza
Suite 450
Bloomington, MN 55425
ARTICLE XI. ADJUSTMENT FOR CHANGES
IN SHARES OR COMPANY
Section 11.01 SHARE DIVIDEND OR RECLASSIFICATION. If the
outstanding Common Shares are increased, decreased, changed into or exchanged
for a different number or kind of securities of the Company, or shares of a
different par value or without par value, through reorganization,
recapitalization, reclassification, share dividend, share split, amendment to
the Company's Articles of Incorporation, reverse share split or otherwise, an
appropriate adjustment shall be made in the maximum numbers and kind of
securities to be purchased under the Plan with a corresponding adjustment in the
purchase price to be paid therefor.
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Section 11.02 MERGER OR CONSOLIDATION. If the Company is merged
into or consolidated with one or more corporations during the term of the Plan,
appropriate adjustments will be made to give effect thereto on an equitable
basis in terms of issuance of shares of the corporation surviving the merger or
of the consolidated corporation, as the case may be.
ARTICLE XII. APPLICABLE LAW
Rights to purchase Common Shares granted under the Plan shall be
construed and shall take effect in accordance with the laws of the State of
Minnesota.
ARTICLE XIII. PARTICIPATION OF SIGNIFICANT SHAREHOLDERS AND NON-EMPLOYEE
DIRECTORS
Section 13.01 INTERPRETATION. This Article XIII is not subject to
Section 423 of the Code. For tax purposes, this Article XIII shall be treated
as separate and apart from the balance of the Plan, as if embodied in a separate
document.
Section 13.02 ELIGIBLE DIRECTORS AND SHAREHOLDERS. Notwithstanding
the definition of "Full-Time Employee" contained in section in Section 1.03(i)
or the eligibility requirements set forth in Article 2 above, each director of
the Company who is not also an employee of the Company (a "Non-Employee
Director"), and each employee of the Company who owns five percent or more of
the outstanding common stock of the Company ("Shareholder Employee") shall be
eligible to participate in the Plan pursuant to this Article XIII. A
Non-Employee Director shall be eligible to participate in the Plan beginning on
the first day of the first Purchase Period to commence after such person becomes
a Non-Employee Director. Subject to the provisions of this Article XIII, each
such Non-Employee Director will continue to be eligible to participate in the
Plan so long as he or she remains a Non-Employee Director. A Shareholder
Employee shall become eligible to participate in the Plan through this Article
XIII at such time, and during such period of time, as such Shareholder Employee
is a Full-Time Employee.
Section 13.03 ELECTION TO PARTICIPATE. A Non-Employee Director or
Shareholder Employee may elect to participate in the Plan for a given Purchase
Period by filing with the Company, in advance of that Purchase Period and in
accordance with such terms and conditions as the Committee in its sole
discretion may impose, a form provided by the Company for such purpose (which
authorizes regular payroll deductions from Current Compensation in the case of
Shareholder Employees, or Director Compensation in the case of Non-Employee
Directors, beginning with the first payday in that Purchase Period and
continuing until the Director or Shareholder Employee withdraws from the Plan or
ceases to be eligible to participate in the Plan). "Director Compensation"
shall mean all amounts which the director would be entitled to receive for
serving as a director in the relevant Purchase Periods, including fees for
attendance at meetings of the Board of Directors or any committee of the Board
of Directors or for any other services as a director of the Company, but shall
not include any consulting fees received by a director from the Company.
Section 13.04 WITHDRAWAL. Notwithstanding section 6.01, no
Non-Employee Director or Shareholder Employee may withdraw from the Plan,
(except upon death, retirement, disability or termination of position with the
Company) during a Purchase Period. The election to participate in the Plan by a
Non-Employee Director or Shareholder Employee shall be irrevocable.
Section 13.05 OTHER MATTERS. All other matters pertaining to the
participation of the Non-Employee Directors and Shareholder Employees in the
Plan shall be governed by Articles III through XII above, assuming for such
purposes only that such Non-Employee Directors and Employee
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Shareholders are "Participants" therein and that, with respect to Non-Employee
Directors, "Current Compensation" refers to "Directors Compensation," except
that:
a. Non-Employee Directors shall not be limited in accordance with Section
3.01 to contributions not exceeding 15% of Directors Compensation;
b. Upon any termination of a position as a Non-Employee Director of the
Company, except termination as a result of death (which shall treated in
the same manner as termination of employment as a result of death pursuant
to Section 6.02), participation in the Plan will cease on the date the
Non-Employee Director ceases to be a Non-Employee Director and the entire
credit balance in such Non-Employee Director's Share Purchase Account will
be paid to the Non-Employee Director in cash within 30 days.
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Exhibit 5
Fourth Shift Corporation
7900 International Drive
International Plaza
Suite 450
Bloomington, MN 55420
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8
filed by FOURTH SHIFT Corporation (the "Company") with the Securities and
Exchange Commission on or about the date hereof, relating to the registration of
500,000 shares of its Common Stock, $.01 par value, which may be issued
pursuant to the exercise of options or other common stock rights granted or
which may be granted under the Company's 1994 Employee Stock Purchase Plan (the
"Plan"), please be advised that as counsel to the Company, upon examination of
such corporate documents and records as we have deemed necessary or advisable
for the purposes of this opinion, it is our opinion that:
1. The Company is a validly existing corporation in good
standing under the laws of the State of Minnesota.
2. The 500,000 shares which may be issued by the Company
under the Plan will be, when issued and paid for as described in the
Registration Statement, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an
Exhibit 5 to the Registration Statement.
Dated: July 21, 1998
Very truly yours,
DORSEY & WHITNEY LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated March 2, 1998
included in Fourth Shift Corporation's Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota
July 21, 1998
