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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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MANUGISTICS GROUP, INC.
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 52-1469385
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
2115 EAST JEFFERSON STREET
ROCKVILLE, MARYLAND 20852
(Address of principal executive offices and zip code)
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FIFTH AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN
MANUGISTICS GROUP, INC. 1991 OUTSIDE DIRECTORS STOCK OPTIONS GRANT
(Full titles of the plans and/or grants)
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William M. Gibson
Manugistics Group, Inc.
2115 East Jefferson Street
Rockville, Maryland 20852
(Name and address of agent for service)
(301) 984-5000
(Telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to offering price aggregate offering Amount of
to be registered be registered per share (1) price (1) registration fee (1)
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<S> <C> <C> <C> <C>
Common Stock, $.002 Par Value 660,000 shares $19.62 $12,949,000 $4,465.24
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c) under the Securities Act of 1933, on the basis of
the average of the high and low prices for the Common Stock on July
26,1996, as reported by the NASDAQ National Market System.
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<PAGE> 2
This Registration Statement relates to (a) 600,000 additional shares
of Common Stock reserved for issuance upon the exercise of options granted or
which may be granted under the Registrant's Fifth Amended and Restated Employee
Stock Option Plan and (b) 60,000 shares of Common Stock reserved for future
issuance upon the exercise of options granted pursuant to the 1991 Outside
Director Stock Option Grant. (Such shares are referred to below as the
"Shares.") The contents of Registration Number 33-67994 and Registration
Number 33-98820, which both relate to the shares of Common Stock previously
registered under the Employee Stock Option Plan, are incorporated herein by
reference.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Commission by the
Company are incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended February 29, 1996.
2. The Company's Current Report on Form 8-K as filed on May 28,
1996.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1996.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A under the Securities Exchange Act
of 1934, as amended, including any amendment or report filed to update the
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act of 1934, as amended, after the date of this
registration statement and prior to the termination of the offering of the
Common Stock shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration
statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The law firm of Dilworth, Paxson, Kalish & Kauffman LLP has rendered an
opinion regarding the legality of the Shares. Joseph H. Jacovini, Co-Chairman
and a principal in that firm and a member of the Board of Directors of the
Company, was awarded an option to purchase shares of the Company's Common Stock
pursuant to the 1991 Outside Director Stock Option Grant. The twelve thousand
(12,000) shares which remain issuable upon exercise of that option are included
among the Shares being registered pursuant to this registration statement. The
law firm of Dilworth, Paxson, Kalish & Kauffman LLP is the beneficial owner of
those shares. Mr. Jacovini also holds options to purchase 10,000 shares of the
Company's Common Stock granted under the Company's 1994 Outside Directors
Non-Qualified Stock Option Plan. Members of said law firm,
<PAGE> 3
including Mr. Jacovini, may be deemed to own beneficially shares of the
Company's Common Stock which, in the aggregate, constitute less than one-half
of one percent of the outstanding shares of such stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware General Corporation Law, Section 102(b)(7), enables a
corporation in its certificate of incorporation to eliminate or limit personal
liability of members of its Board of Directors for monetary damages for breach
of a director's fiduciary duty of care. The elimination or limitation does not
apply where there has been a breach of the duty of loyalty, failure to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
paying a dividend or approving a stock repurchase which was deemed illegal or
obtaining an improper personal benefit. The Company's Certificate of
Incorporation and By-Laws provide that directors "shall be excused from
liability to the fullest extent permitted by Delaware law," as now in effect or
as subsequently amended.
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect
to any matter in which the director or officer acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, he had no
reasonable cause to believe his conduct was unlawful. The By-laws of the
Company include comparable provisions.
Directors and officers are also insured against certain liabilities
under a directors and officers' liability insurance policy maintained by the
Company.
ITEM 8. EXHIBITS.
5 Opinion of Dilworth, Paxson, Kalish & Kauffman LLP as
to the legality of securities being registered.
10.1 Manugistics Group, Inc. Fifth Amended and Restated
Employee Stock Option Plan.
10.2 1991 Outside Director Stock Option Grant.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Dilworth, Paxson, Kalish & Kauffman LLP
(included as a part of Exhibit 5).
24.1 Power of Attorney.
24.2 Certificate of Secretary.
ITEM 9. UNDERTAKINGS.
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 to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
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(2) For the purpose of determining any liability under the Securities Act
of 1933, that 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 end of the
offering.
(4) 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 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.
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 set forth in response to Item
6, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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<PAGE> 5
SIGNATURES
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 Rockville, State of Maryland, on the 2nd day of
August, 1996.
MANUGISTICS GROUP, INC.
By: *
--------------------------------
William M. Gibson
Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, August 2, 1996
------------------------ President and Chief Executive
William M. Gibson Officer; Director (Principal
Executive Officer)
* Vice President and Chief August 2, 1996
------------------------ Financial Officer (Principal
Peter Q. Repetti Financial Officer and Principal
Accounting Officer)
* Director August 2, 1996
-----------------------
Jack A. Arnow
* Director August 2, 1996
------------------------
Joseph H. Jacovini
* Director August 2, 1996
------------------------
J. Michael Cline
* Director August 2, 1996
-------------------------
William G. Nelson
* Director August 2, 1996
------------------------
Thomas A. Skelton
* Director August 2, 1996
-----------------------
Lynn C. Fritz
*By: /s/ Peter Q. Repetti
-----------------------
Peter Q. Repetti
Attorney-in-Fact
</TABLE>
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<PAGE> 6
EXHIBIT INDEX
5 Opinion of Dilworth, Paxson, Kalish & Kauffman LLP as to the
legality of securities being registered.
10.1 Manugistics Group, Inc. Fifth Amended and Restated Employee
Stock Option Plan.
10.2 1991 Outside Director Stock Option Grant.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Dilworth, Paxson, Kalish & Kauffman LLP (included as
a part of Exhibit 5).
24.1 Power of Attorney.
24.2 Certificate of Secretary.
-5-
<PAGE> 1
EXHIBIT 5
(215) 575-7000
August 2, 1996
Manugistics Group, Inc.
2115 East Jefferson Street
Rockville, MD 20852
Re: Manugistics Group, Inc. Fifth Amended and Restated
Employee Stock Option Plan
1991 Outside Directors Stock Options
Registration Statement on Form S-8
Ladies and Gentlemen:
As counsel for Manugistics Group, Inc., a Delaware corporation (the
"Company"), we have been asked to render our opinion with respect to certain
matters relating to the issuance of a total of up to 660,000 shares of the
Company's Common Stock, par value $.002 per share (the "Shares"), which are
issuable upon exercise of: (i) outstanding options granted by the Company in
1991 (the "1991 Options"), to the individuals who then were (and are) outside
directors of the Board of Directors of the Company - 60,000 shares; and (ii)
options granted or which may be granted pursuant to the Company's Fifth Amended
and Restated Employee Stock Option Plan (the "Plan") - 600,000 additional
shares. (The number of Shares which may be purchased upon exercise of each
option is subject to adjustment from time to time as set forth in such option
or the Plan.)
The Shares are the subject of a Registration Statement on Form S-8
which the Company intends to file with the Securities and Exchange Commission
under the Securities Act of 1993, as amended (the "Act"), on or about August 2,
1996. (Said Registration Statement on Form S-8 is referred to hereinafter as
the "Registration Statement.")
The Registration Statement incorporates by reference the contents of
the Company's Registration Statements on Form S-8 Nos. 33-67994 and 33-98820,
relating to the shares of the Company's Common Stock issued or issuable under
the Plan. (These Registration Statements are referred to below as the
"Incorporated
<PAGE> 2
DILWORTH, PAXSON, KALISH & KAUFFMAN PAGE 2
TO: MANUGISTICS GROUP, INC.
Registration Statements.") We understand that the Incorporated Registration
Statements remain in full force and effect.
In rendering this option, we have examined: (i) the Certificate of
Incorporation and By-laws of the Company, each as presently in effect; (ii) the
resolutions and related minutes of the Company's Board of Directors authorizing
the grant of the 1991 Options and the issuance of shares pursuant thereto;
(iii) the form of the 1991 Options; (iv) the resolutions of the Company's Board
of Directors respectively adopting and amending the Plan and authorizing the
issuance of shares pursuant to the Plan; (v) the resolutions of the Company's
Board of Directors authorizing the preparation and filing of the Registration
Statement; (vi) the Registration Statement (including the Incorporated
Registration Statements); and (vii) such certificates and other documents as we
have deemed appropriate or necessary as a basis for the opinions hereinafter
expressed.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents and records examined, the conformity with the
original documents of all documents submitted to us as copies and the
genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that
the Shares, when duly issued in accordance with the terms of the 1991 Options or
the Plan and options duly granted thereunder, respectively, after the
Registration Statement shall have become effective under the Act, will be
legally issued, fully paid and nonassessable.
We have made such investigation of the General Corporation Law of the
State of Delaware as we have considered appropriate for the purpose of
rendering the opinion expressed above. In addition, we have had informal
discussions with the staff of the Securities and Exchange Commission regarding
the eligibility criteria for the use of the Form S-8. We are qualified to
practice law in the Commonwealth of Pennsylvania; this opinion is limited to the
Federal law of the United States and the General Corporation Law of the State
of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to this Firm in Item 5 of Part
II of the Registration Statement.
Very truly yours,
DILWORTH, PAXSON, KALISH & KAUFFMAN
cc: Helen A. Nastasia, General Counsel
and Secretary
<PAGE> 1
EXHIBIT 10.1
MANUGISTICS GROUP, INC.
FIFTH AMENDED AND RESTATED
EMPLOYEE STOCK OPTION PLAN
1. PURPOSE. This Employee Stock Option Plan (the "Plan") is
intended to encourage stock ownership by employees of Manugistics Group, Inc.
(the "Corporation") or any of its subsidiary corporations as that term is
defined in Section 4 of the Internal Revenue Code of 1986, as amended (the
"Code") (the "Subsidiaries") so that such employees may acquire or increase
their interest in the success of the Corporation and Subsidiaries and so that
they may be encouraged to remain in the employ of the Corporation or its
Subsidiaries.
2. ADMINISTRATION. The Plan shall be administered by a committee
appointed by the Board of Directors of the Corporation (the "Committee"). The
Committee shall consist of not less than two members of the Corporation's Board
of Directors, who are "disinterested persons" as such term is defined in Rule
16b-3(c)(2)(i) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). The Board of Directors may from time to time remove members
from, or add members to, the Committee. Vacancies on the Committee, howsoever
caused, shall be filled by the Board of Directors; provided, however, that any
individual appointed to the Committee shall be a Director who is a
"disinterested person." The Committee shall hold meetings at such times and
places as it may determine. If the Committee consists of three or more
members, the Committee shall select one of its members as Chairman. Acts by a
majority of the Committee at a meeting at which a quorum is present, or acts
reduced to or approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee. No person while a member
of the Committee shall receive a discretionary grant or award under any stock
plan of the Corporation, other than pursuant to a stock plan where such grant
or award is determined under a formula meeting the requirements of Rule
16b-3(c)(2)(ii) of the Exchange Act. The Committee shall from time to
Revised April 30, 1996
1
<PAGE> 2
time in its discretion designate the employees who shall be granted options and
the amount of stock to be issued upon exercise of such options. The Committee
shall have the final authority to determine these matters. The interpretation
and construction by the Committee of any provisions of the Plan or of any
option granted under it shall be final. No member of the Board of Directors or
the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any option granted under it.
3. ELIGIBILITY. The persons who shall be eligible to receive
options shall be all full time employees (including officers, whether or not
they are directors) of the Corporation or its Subsidiaries and certain other
individuals who are or were employees of the Corporation or its Subsidiaries or
consultants of the Corporation or its Subsidiaries who are specifically granted
options by the Board. An optionee may hold more than one option but only on
the terms and subject to the restrictions hereinafter set forth.
4. STOCK. The stock subject to the options shall be shares of
the Corporation's authorized, but unissued or reacquired, common stock (the
"Common Stock"). The aggregate number of shares which may be issued under
options granted under the Plan shall not exceed 2,782,119 shares of Common
Stock. The limitation established by the preceding sentence shall be subject
to adjustment as provided in Article 6(b) of the Plan. In the event that any
outstanding option granted under the Plan for any reason expires or is
terminated, the shares of Common Stock allocable to such option may again be
subject to an option grant under the Plan.
5. TERMS AND CONDITIONS OF OPTIONS. When the Committee shall
have granted options to employees, a Notice of Grant of Stock Option (the
"Notice") shall be given to each employee in such form as the Committee shall
from time to time approve, which Notice shall comply with and be subject to the
following terms and conditions:
Revised April 30, 1996
2
<PAGE> 3
(a) NUMBER OF SHARES. Each Notice shall state the number
of shares of Common Stock to which it pertains. The Committee shall award
employees options for shares of Common Stock in accordance with the following:
(i) As of the date that each person becomes a
full-time employee ("Employee") of the Corporation or its
Subsidiaries, such Employee shall receive an option for the
number of shares of Common Stock specified below for Employees
having the titles designated below or their equivalent:
A. All Full-Time Employees 200 Shares
B. Managers/Lead Specialists 400 Shares
C. Senior Managers 500 Shares
D. Officers & Directors 600 Shares
(ii) Any Employee who is promoted to the level of
Manager/Lead Specialist, Senior Manager or Officer and
Director (or their equivalent) shall receive an option at the
time of such promotion for an additional number of shares of
Common Stock equal to the difference between the number of
shares previously granted under an option or options pursuant
to this Article 5(a)(i) and the number of shares which the
Employee would have received had such promotion been effective
as of the date such person became an Employee of the
Corporation or its Subsidiaries.
(iii) Such other amounts as are determined by the
Committee from time to time in its discretion.
(b) OPTION PRICE. Each Notice shall state the option
price, which shall not be less than 100% of the fair market value per share of
the Common Stock on the date of the grant of the option. During such time as
the Common Stock is not listed upon an established stock exchange or traded in
the over-the-counter market, the fair market value per share shall be
determined by the Committee at least annually by relying upon whatever evidence
it deems appropriate which may include, but need not be limited to, recent
Revised April 30, 1996
3
<PAGE> 4
sales of the Common Stock, opinions of professional appraisers and recent sales
of stock of other comparable companies. If the Common Stock is traded in the
over-the-counter market, such fair market value per share shall be the average
of the high and low prices of the Common Stock in the over-the-counter market
on the date previous to the date that the option is granted, as reported by the
National Association of Securities Dealers, Inc. If the Common Stock is listed
upon an established stock exchange or exchanges such fair market value per
share shall be deemed to be the average of the high and the low price of the
Common Stock on such stock exchange or exchanges on the day previous to the
date that the option is granted or if no sale of the Common Stock shall have
been made on any stock exchange on that day, on the next preceding day on which
there was a sale of such Common Stock. Subject to the foregoing, the Committee
in fixing the option price shall have full authority and discretion.
(c) MEDIUM AND TIME OF PAYMENT. Each option shall be
exercised by giving written notice to the Corporation, addressed to the
attention of its Secretary at its principal corporate office, which notice
shall specify the number of shares of Common Stock to be purchased and shall be
accompanied by payment in full for the shares of Common Stock being purchased.
Unless otherwise specified in the Notice pursuant to Article 6 hereof, the
option price shall be payable by cash or check in United States dollars upon
the exercise of the option.
(d) TERM AND EXERCISE OF OPTIONS.
(i) All options granted hereunder shall vest and
become exercisable in the following manner: twenty-five
percent (25%) per year commencing twelve (12) months after the
date of the grant of the option.
(ii) Options may only be exercised by an optionee
for so long as the optionee is employed by the Corporation or
its Subsidiaries except as otherwise provided in Article 6(b)
of the Plan. Notwithstanding the foregoing, if an employee
who was granted options on or after July 17, 1990 is
terminated
Revised April 30, 1996
4
<PAGE> 5
involuntarily without cause within one year after a
consolidation or merger in which the Corporation is not the
surviving Corporation, the options may be exercisable as of
the date of such consolidation or merger. In no event shall
an option granted under this Plan be exercisable more than ten
(10) years after the date of the grant of the option.
(iii) Not less than fifty (50) shares may be
purchased upon exercise of an option at any one time unless
the number purchased is the total number at the time
purchasable under the option.
(iv) During the lifetime of the optionee the option
shall be exercisable only by the optionee and shall not be
transferred, assigned, pledged or otherwise disposed of by the
optionee and no other person shall acquire any rights therein.
6. TERMINATION OF EMPLOYMENT EXCEPT BY DEATH OR DISABILITY. In
the event that the employment of an optionee by the Corporation or its
Subsidiaries shall terminate for any reason other than the optionees death or
disability, the optionee may exercise any options held by such optionee for a
period of thirty (30) days from the last day of work date to the extent that
the optionee's right to exercise such options had accrued pursuant to Article
5(d) on or before the last day of work date. Notwithstanding the foregoing,
the last day of work date for purposes of the Plan, and the options which shall
become fully vested on that date, may be determined by the Committee, which
determination, unless overruled by the Board of Directors, shall be final and
conclusive. An optionee who with the approval of the Corporation takes leave
without pay for up to twelve (12) weeks for the purpose of caring for a member
of his or her family shall be permitted to retain options granted to such
optionee prior to the first day of such leave. The Committee shall determine
whether such leave is taken for the purpose of caring for a member of the
employee's family, which determination, unless overruled by the Board of
Directors, shall be final and conclusive. Whether any other authorized leave
of absence or absence for military or governmental
Revised April 30, 1996
5
<PAGE> 6
service shall constitute termination of employment, for the purposes of the
Plan, shall be determined by the Committee, which determination, unless
overruled by the Board of Directors, shall be final and conclusive. If the
optionee converts from full-time employment to part-time employment, such
conversion shall not affect such optionee's right to exercise any option.
(a) DEATH OR LONG-TERM DISABILITY OF OPTIONEE AND
TRANSFER OF OPTION.
(i) Notwithstanding any provision contained herein
to the contrary, if the optionee shall die while in the employ
of the Corporation or a Subsidiary, the option shall remain
exercisable by the executors or administrators of the optionee
or by any person or persons who shall have acquired the option
directly from the optionee by bequest or inheritance for a
period of ninety (90) days following the date of the
optionee's death to the extent that the optionee's right to
exercise such option had accrued pursuant to Article 5(d) as
of the date of the optionee's death. No option shall be
transferable by the optionee other than by will or the laws of
descent and distribution.
(ii) Notwithstanding any provision contained herein
to the contrary, if the optionee shall become disabled while
in the employ of the Corporation or a Subsidiary, the option
shall be exercisable by the optionee for a period of ninety
(90) days from the date of disability to the extent that the
optionee's right to exercise such option had accrued pursuant
to Article 5(d) as of the date of disability, and the
expiration of the option following such ninety (90) day period
shall thereafter be suspended until a date one (1) year from
the date of disability, at which time the option shall
terminate, unless the optionee shall return to work within
such one (1) year period, in which case the option shall be
restored for all vesting purposes as if the disability of the
optionee had not occurred;
Revised April 30, 1996
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<PAGE> 7
For purposes of this Plan, an optionee shall be considered
disabled if the optionee is considered disabled under the Corporation's or its
Subsidiaries regular long-term disability provisions. However, the
determination of the Committee as to whether an optionee is disabled shall be
binding and conclusive for purposes of this Plan.
(b) RECAPITALIZATION. Subject to any required action by
the shareholders of the Corporation, the number of shares of Common Stock
covered by each outstanding option, and the price per share thereof in each
such option, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock of the Corporation resulting from a
subdivision or consolidation of shares or the payment of a stock dividend (but
only on the Common Stock) or any other increase or decrease in the number of
such shares effected without receipt of consideration by the Corporation, so
that the optionee's percentage of ownership of the total number of shares of
Common Stock outstanding is neither increased nor decreased.
Subject to any required action by the shareholders of the
Corporation, if the Corporation shall be the surviving corporation in any
merger or consolidation, each outstanding option shall pertain to and apply to
the securities to which a holder of the number of shares of Common Stock
subject to the option would have been entitled. A dissolution or liquidation
of the Corporation or a merger or consolidation in which the Corporation is not
the surviving corporation, shall cause each outstanding option to terminate,
provided that each optionee shall, in such event, if a period of 12 months from
the date of the granting of the option shall have expired, have the right
immediately prior to such dissolution or liquidation, or merger or
consolidation in which the Corporation is not the surviving corporation, to
exercise his option in whole or in part without regard to the installment
provisions of Article 5(d) of the Plan. Notwithstanding the above provisions,
an option will not terminate if assumed by the surviving or acquiring
corporation, or its parent, upon a merger or consolidation under circumstances
which are not deemed a modification of the option within the meaning of
Sections 424 and 424(3)(A) of the Internal Revenue Code.
Revised April 30, 1996
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<PAGE> 8
In the event of a change in the Common Stock of the
Corporation as presently constituted, which is limited to a change of all of
its authorized shares with par value into the same number of shares with a
different par value or without par value, the shares resulting from any such
change shall be deemed to be the Common Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock
or securities of the Corporation, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive.
Except as hereinbefore expressly provided in this Article
6(b), the optionee shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class or the payment of any stock
dividend or any other increase or decrease in the number of shares of stock of
any class or by reason of any dissolution, liquidation, merger or consolidation
or spin-off of assets or stock of another corporation, and any issue by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock subject to the option.
The grant of an option pursuant to the Plan shall not affect
in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or to consolidate or to dissolve, liquidate or sell, or
transfer all or any part of its business or assets.
(c) RIGHTS AS A STOCKHOLDER. An optionee or a permitted
transferee of an option shall have no rights as a stockholder with respect to
any shares covered by the optionee's option until the date of the issuance of a
stock certificate to the optionee for such shares following the exercise of
such option. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Article 6(b) hereof.
Revised April 30, 1996
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<PAGE> 9
(d) MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS.
Subject to the terms and conditions and within the limitations of the Plan, the
Committee may modify outstanding options granted under the Plan, or accept the
surrender of outstanding options (to the extent not theretofore exercised).
The Committee shall not, however, modify any outstanding options so as to
specify a lower price or accept the surrender of outstanding options and
authorize the granting of new options in substitution therefor specifying a
lower price. Notwithstanding the foregoing, however, no modification of an
option shall, without the consent of the optionee, alter or impair any rights
or obligations under any option theretofore granted under the Plan.
(e) INVESTMENT PURPOSE. Each option under the Plan shall
be granted on the condition that the purchases of stock thereunder shall be for
investment purposes and not with a view to resale or distribution, except that
in the event the stock subject to such option is registered under the
Securities Act of 1933, as amended (the "Securities Act"), or in the event a
resale of such stock without such registration would otherwise be permissible,
such condition shall be inoperative if, in the opinion of counsel for the
Corporation, such condition is not required under the Securities Act or any
other applicable law, regulation or rule of any governmental agency.
(f) CONFIDENTIALITY AGREEMENT. The Notice may provide
that, as a condition of the employee's acceptance of the option, the employee
shall agree to be bound by a confidentiality agreement with the Corporation
containing such terms as the Committee and Board of Directors shall deem
advisable.
(g) OTHER PROVISIONS. The Notice shall contain such
other provisions, including, without limitation, restrictions upon the exercise
of the option or the transfer of the shares received upon an exercise, as the
Committee and the Board of Directors shall deem advisable.
7. PERMISSIBLE PROVISIONS. In addition to the other powers
granted to the Committee and the Board of Directors under this Plan, the
Committee and the Board of Directors shall have the discretion to include in
any option grant the right of the optionee (i) to pay for the Common Stock upon
Revised April 30, 1996
9
<PAGE> 10
exercise of the option with Common Stock of the Corporation, and/or (ii) to
receive property at the time of exercise of the option if, in the case of
property other than cash, Section 83 of the Code applies to such property.
8. TERM OF PLAN. Options may be granted pursuant to the Plan
from time to time until such time as all shares available under the Plan as set
forth in Article 4 have been made subject to an option grant. If any
outstanding option under the Plan for any reason expires or is terminated, the
shares of Common Stock allocable to the option may again be subject to an
option under the Plan.
9. INDEMNIFICATION OF COMMITTEE. In addition to such other
rights of indemnification as they may have as directors or as members of the
Committee and the Board of Directors, the members of the Committee and the
Board of Directors shall be indemnified by the Corporation against the
reasonable expenses, including attorneys' fees actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or
in connection with any appeal therein, in which they or any of them may be a
party by reason of any action taken or failure to act under or in connection
with the Plan or any option granted thereunder, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Corporation) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
person is liable for gross negligence or intentional misconduct in the
performance of his or her duties; provided that within sixty (60) days after
institution of any such action, suit or proceeding such person shall in writing
offer the Corporation the opportunity, at its own expense, to handle and defend
the same.
10. AMENDMENT OF THE PLAN. The Board of Directors of the
Corporation may, insofar as permitted by law, from time to time, with respect
to any shares at the time not subject to options, suspend or discontinue the
Plan or revise or amend it in any respect whatsoever except that, without
approval of the shareholders of the Corporation, no such revision or amendment
shall materially increase the number of
Revised April 30, 1996
10
<PAGE> 11
shares of Common Stock which may be issued pursuant to the Plan, materially
increase the benefits accruing to participants under the Plan, or otherwise
materially modify the requirements for eligibility.
11. APPLICATION OF FUNDS. The proceeds received by the
Corporation from the sale of Common Stock issued pursuant to options will be
used for general corporate purposes.
12. NO OBLIGATION TO EXERCISE OPTION. The granting of an option
shall impose no obligation upon the optionee to exercise such option.
13. CONTINUED EMPLOYMENT. The grant of an option pursuant to the
Plan shall not be construed to imply or to constitute evidence of any
agreement, expressed or implied, on the part of the Corporation or any
Subsidiary to continue to employ an employee, or to affect the right of the
Corporation or any Subsidiary to terminate the employment of any employee or to
alter the responsibilities, duties or authority of any employee.
14. EFFECTIVE DATE AND TERM OF PLAN; STOCKHOLDER APPROVAL. This
Plan shall have an effective date of April 30, 1996 and shall have a term of
ten (10) years. However, no option may be exercised unless this Plan is
approved by the vote of a majority of the outstanding shares of the
Corporation's Common Stock present, or represented, and entitled to vote, at a
meeting of stockholders of the Corporation held within twelve (12) months after
the effective date of the Plan.
15. WITHHOLDING TAXES. The exercise of each option shall be
subject to the condition that if at any time the Corporation shall determine in
its discretion that the satisfaction of withholding tax or other withholding
liabilities, is necessary or desirable as a condition of, or in connection
with, the exercise or the delivery or purchase of shares pursuant to the
option, then in any such event, the exercise shall not be effective unless such
withholding shall have been effective or obtained free of any conditions not
acceptable to the Corporation, including withholding from other fees or sums
otherwise due to the option holder from the Corporation.
Revised April 30, 1996
11
<PAGE> 1
EXHIBIT 10.2
NOTICE OF GRANT OF OPTION
STSC PLUS WARE, INC.
OUTSIDE DIRECTORS STOCK OPTION GRANT
1991 GRANT
Name
Address
Dear _________________:
I am pleased to notify you that on July 23, 1991, the Board of Directors of
STSC Plus Ware, Inc. (the "Company") granted to you a non-assignable,
non-qualified stock option (the "Option") to purchase up to 16,000 shares of
the common stock of the Company at a price of $3.00 per share; subject,
however, to the terms and conditions hereinafter set forth.
1. This option shall not be exercisable before July 23, 1992 and shall
thereafter be exercisable as to 4,000 shares on each anniversary date
hereof beginning on July 23, 1992, and shall expire on a date eleven
(11) years after July 23, 1991.
2. The granting to you of the rights under this Option shall not vest in
you any rights of a shareholder of the Company until the certificates
evidencing the shares purchased are properly delivered to you.
3. THIS OPTION HAS NOT BEEN GRANTED PURSUANT TO A QUALIFIED STOCK OPTION
PLAN AND DOES NOT QUALIFY UNDER THE REQUIREMENTS OF SECTION 422 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. The Company makes no
representation to you with respect to the tax consequences of this
Option and suggests you seek advice with respect thereto from your tax
counsel.
4. This Option shall not be transferable or assignable by you, otherwise
than by will or the laws of decent and distribution and this Option
shall be exercisable, during your lifetime, only by you. This Option
may not be pledged or hypothecated in any way and it shall not be
subject to execution, attachment or similar process.
5. In the event you cease to serve as a Director for any reason except
disability or death, the Option shall expire as of the date your
service as a Director terminates. In the event of your disability or
death, and if the vested portion of the Option granted herein has not
been exercised, the Option privileges which were immediately
exercisable by you at the date of disability or death will be
exercisable by you or your legal representative or estate for a period
of one year following your disability or death. The unvested portion
of the Option shall expire as of the date of disability or death.
Disability shall mean your inability to perform services as a Director
for a period of six months in any twelve month period.
<PAGE> 2
6. The exercise of the Option shall be subject to the condition that if
at any time the Company shall determine in its discretion that the
satisfaction of withholding tax or other withholding liabilities, or
that the listing, registration, or qualification of any shares
otherwise deliverable upon such exercise, upon any securities exchange
or under any state or Federal law, or that the consent or approval of
any regulatory body, is necessary or desirable as a condition of. or
in connection with, the exercise or the delivery of purchase of shares
pursuant to the Option, then in any such event, the exercise shall not
be effective unless such withholding, listing, registration,
qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.
7. In the event that the outstanding shares of common stock of the
Company are hereinafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities
of the Company or of another corporation, by reason of a
recapitalization, reclassification, stock split-up, spin-off,
combination of shares or dividends or other distribution payable in
capital stock, appropriate adjustments may be made by the Board of
Directors in the number and kind of shares subject to the option and
in the purchase price therefor, all in the discretion of the Board of
Directors of the Company.
8. In the event of the dissolution or liquidation of the Company or in
the event of a reorganization in which the Company was not the
surviving or acquiring company, the Option shall terminate as of a
date to be fixed by the Board of Directors of the Company, provided
that not less than 30 days written notice of the date so fixed shall
be given to you and you shall have the right to exercise this Option
in full as to any part which has not theretofore been exercised.
9. The Option granted herein may be exercised in whole or in part
successively by:
a. Completing and signing a written notice substantially in the
following form:
"I hereby exercise the Option granted to the undersigned as of
the 23rd day of July 1991, by STSC Plus Ware, Inc. and elect
to purchase ___________ shares of the stock covered thereby
for a total purchase price of $_."
b. Delivering such notice to the secretary of STSC Plus Ware,
Inc., together with a check or money order payable to STSC
Plus Ware, Inc. or cash, in the amount of the full purchase
price of the stock elected to be purchased.
c. Executing and delivering to STSC Plus Ware, Inc. an Investment
Letter respecting the shares of stock elected to be purchased
in the form attached hereto and marked "Exhibit A".
10. In the event of a dispute with respect to any of the terms and
conditions of this Option, the interpretation and decision of the
Board of Directors of the Company shall be final.
11. All notices, requests and other communications contemplated or
required hereunder, if not delivered in person, shall be determined to
have been adequately delivered, if mailed, by registered mail, postage
pre-paid, to the last known address of the undersigned or STSC Plus
Ware, Inc.
<PAGE> 3
THIS AGREEMENT shall be construed in accordance with and governed by the laws
of the State of Maryland.
STSC PLUS WARE, Inc.:
By:
------------------------------
AGREED AND ACCEPTED:
By:
-----------------------------
<PAGE> 4
EXHIBIT A
INVESTMENT LETTER
Mr. William J. Kaluza
Secretary
STSC PLUS WARE, Inc.
2115 East Jefferson Street
Rockville, MD 20852
Re: PURCHASE OF STSC PLUS WARE, INC. STOCK
Gentlemen:
In connection with the exercise of my right to purchase shares of the
Common Stock of STSC PLUS WARE, Inc. (the "Company"), pursuant to an option
granted to me under the STSC PLUS WARE, Inc. Director Stock Option Plan, I
understand that I must assure the Company that it is my intention to acquire
such stock (the "Subject Stock") for investment purposes only and to hold such
stock subject to the terms and conditions hereof. Consequently, I hereby
represent, warrant and agree as follows:
1. I understand that the Subject Stock has not been registered
under the Securities Act of 1933, or the Maryland Securities Act, by reason of
specific exemptions thereunder. I further understand that the Subject Stock
cannot be sold, transferred or otherwise disposed of to any person or entity
unless subsequently registered under the Securities Act of 1933 or the Maryland
Securities Act, if such registration is required. I further understand that,
with respect to such exemptions, the Company is relying upon the truth and
accuracy of my representations and warranties contained herein.
2. The Subject Stock will not be sold by me within twelve (12)
months after the date of purchase. The Subject Stock will be acquired by me
for my own account, for investment purposes only, and not with any view to the
further distribution or resale thereof. I shall make no offer for sale,
solicit any offer to purchase or attempt to otherwise transfer my interest in
the Subject Stock, or any other stock of the Company issued to me by virtue of
my ownership of the Subject Stock until such proposed offer, solicitation of
purchase or attempted transfer has been registered under such Acts, or until I
receive the opinion of counsel for the Company that such registration is not
required with respect to such proposed transfer. In this regard, I recognize
that the Subject Stock must be held indefinitely in the absence of
registration or the availability of an exemption from registration.
3. I understand that Rule 144 of the Rules and Regulations of the
Securities and Exchange Commission provides that, under certain circumstances,
restricted stock, such as the Subject Stock, may
<PAGE> 5
Page Two
be permissibly resold without registration thereof. In this regard, I
understand that the two-year minimum holding period provided in Rule 144 is not
at this time available with respect to any resale of the Subject Stock. I
further understand that, until such time as there is "adequate current public
information" (as defined in Rule 144) outstanding with respect to the Company
(or until I have been the beneficial owner of the Subject Stock for at least
three years) and all other terms and conditions of Rule 144 are then satisfied,
resale of the Subject Stock will not be permissible under Rule 144.
4. I understand that the Company is under no obligation to
register the Subject Stock, or to in any way assist me in the sale of such
stock pursuant to Rule 144 or any other applicable Rule or Regulation.
5. I understand the nature of the investment being undertaken by
me and the financial risk thereof. I have been furnished information regarding
the business, operations, and financial and other information regarding the
condition of the Company. I have examined the same, or caused the same to be
examined by my representative, and I do not desire any further information or
data concerning the Company.
6. I agree to the placement on any certificate or certificates
evidencing the Subject Stock, and upon any other certificate or certificates
evidencing stock issued to me by virtue of my ownership of the Subject Stock,
of a legend in substantially the following form:
"Any disposition of any interest in the securities represented by this
certificate is subject to restrictions, and the securities represented
by this certificate are subject to the terms and conditions contained
in a certain agreement dated as of February 28, 1986, as amended, by
and among certain stockholders of the corporation and the corporation,
a copy of which is on file with the secretary of the corporation and
will be mailed to any holder of this certificate without charge within
five (5) days of receipt by the corporation of a written request
therefor. By acceptance of this certificate, the holder hereof agrees
to be bound by the terms of said agreement.
These securities have not been registered under the Securities Act of
1933, as amended, or any state securities laws. They may not be sold
or offered for sale or transferred in the absence of an effective
registration statement under said act or an opinion of counsel
satisfactory to the company stating that such registration is not
required; nor may these securities be sold or offered for sale or
transferred within 12 months of the date appearing on the face of this
certificate in the absence of an effective registration under any
applicable state securities laws."
Very truly yours,
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Manugistics Group, Inc. on Form S-8 of our reports dated April 8, 1996, except
for Note 13, as to which the date is May 24, 1996, appearing in the Annual
Report on Form 10-K of Manugistics Group, Inc. for the year ended February
29, 1996.
DELOITTE & TOUCHE LLP
Washington, D.C.
August 2, 1996
<PAGE> 1
POWER OF ATTORNEY
Each of the undersigned directors of Manugistics Group, Inc. whose
signature appears below hereby appoints William M. Gibson and Peter Q.
Repetti, jointly and individually, as attorneys-in-fact for the undersigned
with full power of substitution, to execute in his name and on behalf of such
person, individually, and in each capacity stated below, this Registration
Statement on Form S-8 and one or more amendments (including post-effective
amendments) to this Registration Statement as the attorney-in-fact shall deem
appropriate, and to file any such amendment (including exhibits thereto and
other documents in connection herewith) to this Registration Statement on Form
S-8 with the Securities and Exchange Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or either of them, may lawfully do or cause to be done by
virtue hereof.
Signed this 26th day of July, 1996.
<TABLE>
<S> <C>
- --------------------------------
William M. Gibson
---------------------------------
Jack A. Arnow
- --------------------------------
J. Michael Cline
---------------------------------
Lynn C. Fritz
- --------------------------------
Joseph H. Jacovini
---------------------------------
William G. Nelson
- --------------------------------
Thomas A. Skelton
</TABLE>
<PAGE> 1
CERTIFICATE OF SECRETARY
The undersigned, Helen A. Nastasia, Secretary of Manugistics Group, Inc., a
Delaware corporation (the "Corporation"), hereby certifies that on July 26,
1996, the Board of Directors of the Corporation duly adopted the resolutions
set forth below:
RESOLVED, that the proper officers of the Company are
authorized and directed to prepare, with cooperation of
counsel and accountants for the Company, and to file with the
Securities and Exchange Commission, a Registration Statement
on Form S-8 (the "Registration Statement") under the
Securities Act of 1933 as amended of the shares of common
stock issued or issuable from time to time pursuant to the
Employee Stock Option Plan, as amended, and the stock issuable
under the 1991 stock option grants to the Company's outside
directors;
RESOLVED, that William M. Gibson and Peter Q. Repetti, and
each of them individually, are authorized and empowered to
execute by and in the name of the Company the Registration
Statement and any required amendments and supplements thereto
and to file the same with the Securities and Exchange
Commission; and that the execution of the Registration
Statement and of the amendments and supplements thereto by the
officers and directors of the Company either personally or by
either one of William M. Gibson or Peter Q. Repetti, acting as
attorneys-in-fact of such officers or directors pursuant to a
power or powers of attorney, is specifically authorized;
RESOLVED, that William M. Gibson is designated as "Agent for
Service" of the Company in connection with each of the
Registration Statements and the filing thereof with the
Securities and Exchange Commission;
Such resolutions have not been amended, rescinded or otherwise modified and are
in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate this 2nd
day of August, 1996.
-----------------------------
Helen A. Nastasia
Secretary
