<PAGE> 1
As filed with the Securities and Exchange Commission on September 4, 1997
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BAAN COMPANY N.V.
(Exact name of registrant as specified in its charter)
The Netherlands Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
BAAN COMPANY N.V.
Baron van Nagellstraat 89
3371 LK Barneveld
P.O. Box 143
3770 AC Barneveld
The Netherlands
011-31-342-428888
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
1993 STOCK PLAN
(Full title of the plan)
Wim H. Heijting, Esq.
Baan Company N.V.
c/o Baan USA, Inc.
4600 Bohannon Drive
Menlo Park, California 94025
(415) 462-4949
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
HOWARD S. ZEPRUN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered(1) Per Share(2) Price(3) Fee(4)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, NLG 0.01 par value
- -------------------------------------------------------------------------------------------------------------------------
- To be issued upon exercise of options 4,000,000 $59.6875 $238,750,000 $72,348.48
granted under 1993 Stock Plan
- -------------------------------------------------------------------------------------------------------------------------
Total 4,000,000 $59.6875 $238,750,000 $72,348.48
=========================================================================================================================
</TABLE>
(1) All numbers reflect a 2-for-1 stock split effected June, 1996.
(2) The Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(c) whereby the per share price was determined by reference to the
average between the high and the low price reported in the Nasdaq National
Market on August 29, 1997, which average was $59.6875 (the "FMV").
(3) The proposed maximum aggregate offering price is computed by multiplying
the Proposed Maximum Offering Price Per Share by the Amount to be
Registered.
(4) Amount of Registration Fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which states that the fee shall be "one
thirty-third of one per centum of the maximum aggregate price at which such
securities are proposed to be offered."
<PAGE> 2
BAAN COMPANY N.V.
REGISTRATION STATEMENT ON FORM S-8
PART I: INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
Omitted pursuant to the instructions and provisions of Form S-8.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted pursuant to the instructions and provisions of Form S-8.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to 4,000,000 shares of Common Stock par
value NLG 0.01 per share (the "COMMON STOCK"), of Baan Company N.V., a
Netherlands corporation (the "REGISTRANT"), being registered for use under the
Registrant's 1993 Stock Option Plan (the "PLAN").
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant:
1. The Registrant's Registration Statement on Form 20-F dated
April 29, 1997 pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
2. All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the Annual Report on Form 20-F
referred in (1) above.
3. Description of Registrant's Common Stock contained in the
Registration Statement on Form 20-F dated May 12, 1995,
and any registration statements filed after such date
under Section 12 of the Exchange Act, and amendments and
reports filed for the purpose of updating such
description.
4. To the extent designated therein certain Reports on Form
6-K and all other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c) and 15(d) of
the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have
been sold or which deregisters all securities that remain
unsold, shall be deemed be incorporated by reference and be
part hereof from the date of such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of shares of Common Stock offered
hereby will be passed upon for the Registrant by De Brauw Blackstone Westbroek,
Amsterdam, the Netherlands.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The concept of indemnification of directors and officers
of a company for liabilities arising from their actions as members of the
management or supervisory boards is, in principle, accepted in The Netherlands
and sometimes is provided for in a company's articles of association.
Although, neither the laws of The Netherlands nor the Registrant's Articles of
Association contain any provisions in this respect, the Registrant has entered
into indemnification agreements with its directors and officers, providing for
indemnification by the Registrant against any liability to which a director or
executive officer may be subject for judgments, settlements, penalties, fines
and expenses of defense (including attorneys' fees, bonds and costs of
investigation), arising out of or in any way related to acts or omissions as a
director, officer or in any other capacity in which services are rendered to
the Registrant or its subsidiaries. The agreements provide that a director or
officer is not entitled to indemnification under such agreements (i) if
indemnification is expressly prohibited under applicable law, (ii) for certain
violations of securities laws or (iii) for certain claims initiated by the
officer or director. Generally, under Netherlands law a director will not be
held personally liable for decisions made with reasonable business judgment,
absent self dealing. In addition, indemnification may not be available to
directors or officers under Netherlands law if any act or omission by a
director or officer would qualify as willful misconduct or gross negligence.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. INDEX TO EXHIBITS.
Exhibit
Number Description of Document
------ -----------------------
3.1 English translation of Articles of Association of the Company
lodged with the Chamber of Commerce and Industry for Arnhem, The
Netherlands*
3.2 Articles of Association, as amended on May 29, 1996 (See Exhibit
3.1)
4.1 1993 Stock Plan
5.1 Opinion and Consent of De Brauw Blackstone Westbroek
23.1 Consent of Moret Ernst & Young Accountants, Independent Auditors.
23.2 Consent of De Brauw Blackstone Westbroek (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
_____________
* Incorporated by reference to the Registration Statement (Registration
Statement No. 333-24201) on Form F-3 filed on March 31, 1997.
II-2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(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.
(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 Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 Registrant's Articles of Association,
Bylaws, indemnification agreements 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Jan Baan, Tom C. Tinsley, Amal
M. Johnson, Jan Westerhoud and Willem Heijting, jointly and severally, his or
her attorneys-in-fact, each with the power of substitution, for him in any and
all capacities, to sign any amendments to this Registration Statement on Form
S-8 and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorney-in-fact, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ------------------------------ ------------------------------ -------------------
<S> <C> <C>
/s/ JAN BAAN Managing Director, Chairman of the September 4, 1997
- ------------------------------ Board, Chief Executive Officer
Jan Baan (Principal Executive Officer)
/s/ J.G. PAUL BAAN Chairman of the Supervisory Board September 4, 1997
- ------------------------------
J.G. Paul Baan
/s/ TOM C. TINSLEY Managing Director, President and Chief September 4, 1997
- ------------------------------ Operating Officer
Tom C. Tinsley
/s/ AMAL M. JOHNSON Managing Director, Executive September 4, 1997
- ------------------------------ Vice President, Baan Affiliates
Amal M. Johnson and Marketing
/s/ JAN WESTERHOUD Chief Financial Officer August 25, 1997
- ------------------------------
Jan Westerhoud
/s/ WILLIAM O. GRABE Supervisory Director September 4, 1997
- ------------------------------
William O. Grabe
Supervisory Director September 4, 1997
/s/ DAVID C. HODGSON
- ------------------------------
David C. Hodgson
Supervisory Director September 4, 1997
- ------------------------------
Graham J. Sharman
/s/ J.C. (HANS) WORTMANN Supervisory Director September 4, 1997
- ------------------------------
J.C. (Hans) Wortmann
</TABLE>
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Cupertino,
State of California, on the 4th day of September, 1997.
BAAN COMPANY N.V.
By: /s/ Jan Baan
-----------------------------------------------
Jan Baan, Managing Director, Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------------- ---------------------------------------- -------------------
<S> <C> <C>
/s/ Jan Baan Managing Director, Chairman of the Board September 4, 1997
- ---------------------------------- and Chief Executive Officer
(Jan Baan) (Principal Executive Officer)
/s/ J.G. Paul Baan Chairman of the Supervisory Board September 4, 1997
----------------------------------
(J.G. Paul Baan)
/s/ Tom C. Tinsley Managing Director, President and Chief September 4, 1997
---------------------------------- Operating Officer
(Tom C. Tinsley)
/s/ Amal M. Johnson Managing Director, Executive September 4, 1997
---------------------------------- Vice President, Baan Affiliates
(Amal M. Johnson) and Marketing
/s/ JAN WESTERHOUD Chief Financial Officer August 25, 1997
----------------------------------
(Jan Westerhoud)
/s/ William O. Grabe Supervisory Director September 4, 1997
----------------------------------
(William O. Grabe)
/s/ David C. Hodgson Supervisory Director September 4, 1997
----------------------------------
(David C. Hodgson)
Supervisory Director September 4, 1997
----------------------------------
(Graham J. Sharman)
/s/ J.C. (Hans) Wortmann Supervisory Director September 4, 1997
----------------------------------
(J.C. (Hans) Wortmann)
</TABLE>
*By:
---------------------------
ATTORNEY-IN-FACT
II-5
<PAGE> 7
INDEX TO EXHIBITS
Exhibit
Number Description of Document
-------------------------------------------------------------
3.1 English translation of Articles of Association of the Company
lodged with the Chamber of Commerce and Industry for Arnhem, The
Netherlands*
3.2 Articles of Association, as amended on May 29, 1996 (See Exhibit
3.1)
4.1 1993 Stock Plan
5.1 Opinion and Consent of De Brauw Blackstone Westbroek
23.1 Consent of Moret Ernst & Young Accountants, Independent Auditors.
23.2 Consent of De Brauw Blackstone Westbroek (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
_____________
* Incorporated by reference to the Registration Statement (Registration
Statement No. 333-24201) on Form F-3 filed on March 31, 1997.
<PAGE> 1
EXHIBIT 4.1
BAAN COMPANY N.V.
1993 STOCK PLAN
1. Purposes of the Plan
The purposes of this Stock Plan are to attract and retain qualified
available personnel for positions of substantial responsibility, to provide
additional incentive to Employees and Consultants of the Company and its
Affiliates and to promote the success of the Company's business, through the
grant of stock options.
2. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or its Committee appointed
pursuant to Section 4 of the Plan.
(b) "Affiliate" means any Parent or Subsidiary and any entity that
has a business relationship with the Company. The term
Affiliate includes any entity that becomes an Affiliate after
the adoption of the Plan.
(c) "Board" means, as applicable, either or both of the Management
and Supervisory Boards of the Company.
(d) "Committee" means a Committee appointed by the Board in
accordance with Section 4 of the Plan.
(e) "Common Stock" means the Ordinary Shares, NLG 0.01 par value,
of the Company.
(f) "Company" means Baan Company N.V., a Netherlands corporation.
(g) "Consultant" means any person or entity, including an advisor,
who is engaged by the Company or any Affiliate to render
services and who is compensated for such services, and any
director of the Company whether compensated for such services
or not.
(h) "Continuous Status as an Employee or Consultant" means that
the employment or consulting relationship with the Company or
any Affiliate is not interrupted or terminated. Continuous
Status as an Employee or Consultant shall not be considered
interrupted in the case of:
(i) any leave of absence approved by the Board; or
(ii) any other absence from work that is not considered an
interruption of the employment or consulting
relationship pursuant to any applicable law,
regulations, Company or Affiliate policy, or
individual agreement; or
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<PAGE> 2
(iii) transfers between locations of the Company or between
the Company, its Affiliates or its successor.
(i) "Employee" means any person, including officers and directors,
or entity employed by the Company or any Affiliate. The
payment of a director's fee by the Company shall not be
sufficient to constitute "employment" by the Company.
(j) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) if the Common Stock is listed on any established
stock exchange or a national market system, its Fair
Market Value shall be the closing sales price for
such Stock (or the closing bid, if no sales were
reported for the last trading day prior to the time
of determination); or
(ii) in the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be
determined in good faith by the Administrator.
(k) "Option" means a stock option granted pursuant to the Plan.
(l) "Optioned Stock" means the Common Stock subject to an Option.
(m) "Optionee" means an Employee or Consultant who receives an
Option.
(n) "Parent" means any corporation that owns fifty (50) percent or
more of the voting stock of the Company.
(o) "Plan" means this 1993 Stock Plan.
(p) "Purchaser" means an Optionee who has exercised an Option and
acquired Shares thereby.
(q) "Right" means an Option granted under the Plan.
(r) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 11 below.
(s) "Subsidiary" means any corporation at least fifty (50) percent
of the voting stock of which is owned, directly or indirectly,
by the Company.
3. Stock Subject to the Plan
Subject to the provisions of Section 11 of the Plan, the maximum
aggregate number of shares which may be issued under the Plan is 18,000,000.
The shares may be authorized, but unissued, or reacquired Common Stock.
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<PAGE> 3
If a Right should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares which were subject thereto
shall, unless the Plan shall have been terminated, become available for future
grant under the Plan.
4. Administration of the Plan
(a) Administration by Board or its Committee
With respect to grants of Rights to Employees or Consultants,
the Plan shall be administered by:
(i) the Board; or
(ii) a Committee designated by the Board, which Committee
shall be constituted in such a manner as to satisfy
the legal requirements relating to the administration
of stock plan, if any, under any applicable laws.
Once appointed, such Committee shall continue to
serve in its designated capacity until otherwise
directed by the Board. From time to time the Board
may increase the size of the Committee and appoint
additional members thereof, remove members (with or
without cause) and appoint new members in
substitution therefor, fill vacancies, however
caused, and remove all members of the Committee and
thereafter directly administer the Plan, all to the
extent permitted by applicable law.
(b) Powers of the Administrator
Subject to the provisions of the Plan and in the case of a
Committee, the specific duties delegated by the Board to such
Committee, and subject to the approval of any relevant
authorities, including the approval, if required, of any stock
exchange upon which the Common Stock is listed, the
Administrator shall have the authority, in its discretion:
(i) to determine the Fair Market Value of the Common
Stock, in accordance with Section 2(j) of the Plan
and the Appendices;
(ii) to make such determinations and adopt such procedures
as the Administrator deems appropriate with respect
to Plan participation by Employees and Consultants of
the Company's Affiliates, including determinations
relating to conversions to and from currencies other
than the U.S. Dollar:
(iii) to select the Consultants and Employees to whom
Rights may from time to time be granted hereunder;
(iv) to determine whether and to what extent Rights are
granted hereunder;
(v) to determine the number of shares of Common Stock to
be covered by each such award granted hereunder;
3
<PAGE> 4
(vi) to approve forms of agreement for use under the Plan
and its Appendices;
(vii) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award
granted hereunder (including but not limited to the
share price and any restriction or limitation, based
in each case on such factors as the Administrator
shall determine, in its sole discretion);
(viii) to adopt, amend and rescind such rules and
regulations as, in its opinion, may be advisable in
the administration of the Plan and its Appendices;
and
(ix) to make any other such determinations with respect to
awards under the Plan as it shall deem appropriate.
(c) Effect of Committee's Decision
All decisions, determinations and interpretations of the
Administrator shall be final and binding on all Optionees and
any other holders of any Rights.
5. Eligibility
(a) Rights may be granted to Employees and Consultants. An
Employee or Consultant who has been granted a Right may, if
otherwise eligible, be granted additional Rights.
(b) Notwithstanding any provision of the Plan to the contrary,
each agreement evidencing Rights granted to an Employee or
Consultant of the Company or any Affiliate shall include the
relevant provisions applicable to the Company or state of
residence or employment of such Employee or Consultant. Such
provisions are set out, as appropriate, in the Appendices to
the Plan.
(c) The Plan shall not confer upon any Optionee or Purchaser any
right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any
way with his or her right or the Company's right to terminate
his or her employment or consulting relationship at any time,
with or without cause.
6. Term of Plan
The Plan shall become effective upon the earlier to occur of its
adoption by the Board or its approval by the shareholders of the Company as
described in Section 17 of the Plan. It shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 13 of the Plan.
7. Term of Option
The term of each Option shall be the term stated in the Option
agreement; provided, however, that the term shall be no more than ten (10) years
from the date of grant thereof.
8. Option Exercise Price and Consideration
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<PAGE> 5
(a) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is
determined by the Administrator. In the case of an Option
grant to an Employee or Consultant who is not resident in the
United States of America, the Administrator may, in its
discretion, establish the per share exercise price in a
currency other than the U.S. Dollar, subject to the terms of
the Plan and any applicable Appendix.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall
be determined by the Administrator in its discretion and may
consist entirely of (1) cash, (2) check, (3) promissory note,
(4) other Shares, or (5) any combination of the foregoing
methods of payment. In making its determination as to the type
of consideration to accept, the Administrator shall consider
that acceptance of such consideration may be reasonably
expected to benefit the Company.
9. Exercise of Option
(a) Procedure for Exercise; Rights as a Shareholder
Any Option granted hereunder shall be exercisable at such
times and under such conditions as determined by the Board,
including performance criteria with respect to the Company or
any Affiliate and/or the Optionee, and as shall be permissible
under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company or its designee
in accordance with the terms of the Option by the person
entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been
received by the Company or its designee. Full payment may, as
authorized by the Board, consist of any consideration and
method of payment allowable under Section 8(b) of the Plan.
Until the issuance (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such
Shares, no right to vote or receive dividends or any other
rights as a shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such stock
certificate promptly upon exercise of the Option. No
adjustment will be made for a dividend or other right for
which the record date is prior to the date the stock
certificate is issued except as provided in Section 11 of the
Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available,
both for purposes of the Plan and for sale under the Option,
by the number of Shares as to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship
5
<PAGE> 6
In the event of termination of an Optionee's Continuous Status
as an Employee or Consultant with the Company, such Optionee
may, but only within ninety (90) days or such shorter period
of time as is determined by the Administrator and as set forth
in the Option Agreement, after the date of such termination
(but in no event later than the expiration date of the term of
such Option as set forth in the Option Agreement), exercise
his or her Option to the extent that Optionee was entitled to
exercise it at the date of such termination. To the extent
that Optionee was not entitled to exercise the Option at the
date of such termination, or if Optionee does not exercise
such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
(c) Disability of Optionee
Notwithstanding the provisions of Section 9(b) above, in the
event of termination of an Optionee's Continuous Status as an
Employee or Consultant as a result of his total and permanent
disability (as determined by the Administrator or as otherwise
defined by Company policy), Optionee may, but only within
twelve (12) months from the date of such termination (but in
no event later than the expiration date of the term of such
Option as set forth in the Option Agreement), exercise the
Option to the extent otherwise entitled to exercise it at the
date of such termination. To the extent that Optionee was not
entitled to exercise the Option at the date of termination, or
if Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall
terminate.
(d) Death of Optionee
In the event of termination of an Optionee's Continuous Status
as an Employee or Consultant as a result of the death of an
Optionee, the Option may be exercised, at any time within
twelve (12) months following the date of death (but in no
event later than the expiration date of the term of such
Options as set forth in the Option Agreement), by the
Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the
extent the Optionee was entitled to exercise the Option at the
date of death. To the extent that Optionee was not entitled to
exercise the Option at the date of death, or if Optionee does
not exercise such Option to the extent so entitled within the
time specified therein, the Option shall terminate.
(e) Rights Granted Pursuant to Appendices
Options that are intended to qualify as incentive stock
options (within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), or any
successor provision; and Rights that are granted to an
Optionee who is not a resident in the Netherlands may include
any additional conditions or restrictions set out in the
applicable Appendix, including such conditions or restrictions
as apply to the country or residence of employment of such
Optionee.
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<PAGE> 7
10. Non-Transferability of Rights
Rights may not be sold, pledged, assigned, hypothecated, transferred,
or disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Optionee, only by
the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger
(a) Changes in Capitalization
Subject to any required action by the shareholders of the
Company, the number of shares of Common Stock covered by each
outstanding Right, and the number of shares of Common Stock
which have been authorized for issuance under the Plan but as
to which no Rights have yet been granted or which have been
returned to the Plan upon cancellation or expiration of a
Right, as well as the price per share of Common Stock covered
by each such outstanding Right, shall be proportionately
adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse
stock split, stock dividend, combination or reclassification
of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without
receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be
made with respect to, the number of price of shares of Common
Stock subject to a Right.
(b) Dissolution or Liquidation
In the event of the proposed dissolution or liquidation of the
Company, all outstanding Rights will terminate immediately
prior to the consummation of such proposed action, unless
otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in such instances, declare
that any Right shall terminate as of a date fixed by the
Administrator and give each Optionee the right to exercise his
or her Right, including Shares as to which the Right would not
otherwise be exercisable.
(c) Merger
In the event of a merger of the Company with or into another
corporation, the Rights shall be assumed or an equivalent
option or right shall be substituted by such successor
corporation or a parent or subsidiary of such successor
corporation, unless the Administrator determines, in the
exercise of its sole discretion, that each Optionee shall have
the right to exercise his or her Right, including Shares as to
which the Right would not otherwise be exercisable. In the
absence of an assumption or substitution of Rights, Rights
shall, to the extent not exercised, terminate as of the date
of the closing of the
7
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merger. For the purposes of this paragraph, a Right shall be
considered assumed if, following the merger, the option or
right confers the right to purchase, for each Share of
Optioned Stock subject to the Right immediately prior to the
merger, the consideration (whether stock, cash, or other
securities or property) received in the merger by holders of
Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders
of a majority of the outstanding Shares); provided, however,
that if such consideration received in the merger was not
solely common stock of the successor corporation or its
Parent, the Administrator may, with the consent of the
successor corporation and the participant, provide for the
consideration to be received upon the exercise of the Right,
for each Share of Optioned Stock subject to the Right, to be
solely common stock of the successor corporation or its Parent
equal in fair market value to the per share consideration
received by holders of Common Stock in the merger.
12. Time of Granting Options
The date of grant of a Right shall, for all purposes, be the date on
which the Administrator makes the determination granting such Option, or such
other date as is determined by the Administrator. Notice of the determination
shall be given to each Employee or Consultant to whom a Right is so granted
within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan
(a) Amendment and Termination
The Board may at any time amend, alter, suspend or discontinue
the Plan, but no amendment, alteration, suspension or
discontinuation shall be made which would impair the rights of
any Optionee under any grant theretofore made, without his or
her consent. In addition, to the extent necessary and
desirable to comply with applicable law or regulation,
including the requirements of an established stock exchange,
the Company shall obtain shareholder approval of any Plan
amendment in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination
Any such amendment or termination of the Plan shall not affect
Rights already granted and such Rights shall remain in full
force and effect as if this Plan had not been amended or
terminated, unless mutually agreed otherwise between the
Optionee and the Board, which agreement must be writing and
signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares
Shares shall not be issued pursuant to the exercise of an Option unless
the exercise of such Option and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, applicable securities laws, and the requirements of any
stock exchange
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upon which the Shares may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
As a condition to the exercise of a Right, the Company may require the
person exercising such Right to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
15. Reservation of Shares
The Company, during the term of this Plan, will at all times reserve
and keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan.
16. Agreements
Rights shall be evidenced by written agreements in such form as the
Administrator shall approve from time to time.
17. Shareholder Approval
Continuance of the Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months before or after the date
the Plan is adopted Such shareholder approval shall be obtained in the degree
and manner required under applicable law and the rules of any stock exchange
upon which the Common Stock is listed.
9
<PAGE> 1
EXHIBIT 5.1
Baan Company N.V.
Baron van Nagellstraat 89
3371 LK BARNEVELD
The Netherlands
Amsterdam, September 4, 1997
Our ref. : 276\20090617\opin1.314
Dear Sirs,
Baan Company N.V.
Registration under the Securities Act of 1933
of 4,000,000 common shares
in the share capital of Baan Company N.V.
I have acted as legal counsel in respect of the law of the Netherlands to Baan
Company N.V., a company incorporated under the law of the Netherlands with
corporate seat in Barneveld, the Netherlands (the "Company"), in connection with
the registration under the United States Securities Act of 1933 of 4,000,000
common shares, each with a nominal value of NLG 0.01, in the share capital of
the Company, which are issuable from time to time under the Baan Company N.V.
1993 Stock Plan (the "1993 Stock Plan") pursuant to (i) the resolution adopted
by the management board ("directie") and the supervisory board ("raad van
commissarissen") of the Company during their collective meeting of March 5, 1996
which shares are referred to as "an additional 1,000,000" in the third full text
paragraph of paragraph 5 of the minutes referred to in (f) below and which
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shares have been split pursuant to the deed of amendment of the articles of
association of the Company referred to in (i) below (ii) the resolution of the
management board ("directie") of the Company signed on August 20 and 22, 1997
and the resolution of the supervisory board ("raad van commissarissen") of the
Company signed on August 13, 19 and 20, 1997 referred to in (h) below (such
shares hereinafter referred to as the "Shares"), as set forth in the exhibits to
the Registration Statement on Form S-8 to be filed with the United States
Securities and Exchange Commission ("SEC") on or about September 4, 1997 (the
"Registration Statement").
In connection herewith I have examined the following documents:
(a) a photocopy of a copy of the deed of incorporation of the Company and
the text of the articles of association of the Company as most
recently amended according to the Extract (as defined below) by deed
of amendment passed on May 29, 1996 (the "Articles of Association"),
both as filed with the trade register of the Chamber of Commerce and
Industry of Centraal Gelderland, the Netherlands (the "Chamber of
Commerce");
(b) a telecopy of an extract dated September 1, 1997 from the Chamber of
Commerce (the "Extract") and confirmed to me by telephone by the
Chamber of Commerce to be unchanged in all respects material for
rendering this opinion on the date hereof;
(c) a telecopy of the text of the articles of association of the Company
as amended by deed of amendment passed on June 2, 1994;
(d) an official copy of the text of the articles of association of the
Company as amended by deed of amendment passed on May 16, 1995;
(e) a telecopy of the resolutions of the general meeting of shareholders
of the Company dated May 4, 1995;
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(f) a telecopy of the minutes of the collective meeting of the management
board and supervisory board ("directie" and "raad van commissarissen")
of the Company held on March 5, 1996;
(g) a telecopy of the minutes of the meeting of the general meeting of
shareholders of the Company held on May 20, 1997;
(h) a telecopy of the resolution of the management board ("directie") of
the Company signed on August 20 and 22, 1997 and a telecopy of the
resolution of the supervisory board ("raad van commissarissen") of the
Company signed on August 13, 19 and 20, 1997;
(i) a telecopy of a copy of the deed of amendment of the articles of
association of the Company passed on May 15, 1996;
(j) a telecopy of a draft of the Registration Statement received by me on
September 2, 1997; and
(k) a telecopy of the 1993 Stock Plan as attached to the draft
Registration Statement referred to in (j).
My examination referred to above has been limited to the face of the documents.
For the purposes of rendering this opinion I have made the following
assumptions:
(i) the signatures on original documents are the genuine
signatures of the persons purported to have executed the same
and photo and telecopies conform to the originals;
(ii) the Registration Statement has been filed with the SEC
substantially in the form of the draft which I have reviewed
for the purpose of rendering this opinion as specified above
in (j);
(iii) the text of the 1993 Stock Plan referred to in (k) is equal to
the text of (i) the "SOP" as defined in paragraph 5 of the
minutes referred to in (f) above and (ii) the "1993 Stock
Plan" as referred to in the resolutions referred to in
(h) above;
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(iv) any Shares will be issued, offered, sold, delivered, duly
accepted by the subscribers therefor, persons entitled to
purchase Shares under the 1993 Stock Plan, (a) as contemplated
and in accordance with the 1993 Stock Plan and the
Registration Statement, (b) in accordance with any applicable
law, (c) in accordance with the articles of association of the
Company as in force at the time of issuance of such Shares and
(d) with such terms so as not to violate any applicable law
(including, for the avoidance of doubt, any law applicable at
the time of such issue, offer, sale, delivery and acceptance)
and upon issue of each Share at least a consideration (in cash
or in kind) will be paid to the Company on such Share with a
value equal to the nominal amount thereof and any premium
agreed upon at the issue thereof in accordance with the law of
the Netherlands;
(v) the resolutions of the management board ("directie") of the
Company adopted during the collective meeting referred to
above in (f) have been adopted prior to the resolutions of the
supervisory board ("raad van commissarissen") of the Company
adopted during the collective meeting referred to above in
(f);
(vi) the resolutions as referred to in (e), (f), (g) and (h) are
not contrary to standards of reasonableness and fairness
("redelijkheid en billijkheid") to be observed by a legal
entity and those persons, who are pursuant to the law or the
articles of association of such legal entity, involved in its
organization;
(vii) each time when a Share is issued, the authorized capital
("maatschappelijk kapitaal") and the issued
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capital ("geplaatst kapitaal") of the Company are such that
such Share can be validly issued;
(viii) shortly upon issue the Shares will be admitted to the Official
Market of AEX-Effectenbeurs N.V.;
(ix) in so far as the 1993 Stock Plan must be considered as
a system of remuneration ("beloningssysteem") within the
meaning of article 27 paragraph 1 in d of the Works councils
act("Wet op de ondernemingsraden", the "Works Councils Act")
and in the absence of the consent ("instemming") as meant in
article 27 paragraph 1 of the Works Councils Act of the works
councils (the "Works Councils") of Baan Development B.V. and
Baan Nederland B.V., both wholly owned subsidiaries of the
Company, within one month from (i) notification by the Company
to the Works Councils of the decision of the Company to adopt
or, where applicable, amend the 1993 Stock Plan or (ii) the
appearing to the Works Councils that the Company implements or
applies such decision, the Works Councils have not invoked in
writing the nullity of such decision vis-a-vis the Company.
I have not investigated the law of any jurisdiction other than the Netherlands
and I do not express an opinion on the law of any jurisdiction other than the
Netherlands. I only express an opinion on matters of the law of the Netherlands
as it stands and has been published as at the date of this opinion. No opinion
is expressed on any taxation matters.
Terms and expressions of law and of legal concepts as used in this opinion have
the meaning in this opinion attributed to
<PAGE> 6
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them under the law of the Netherlands and this opinion should be read and
understood accordingly.
Based upon the foregoing (including the documents listed above and the
assumptions set out above) and subject to any facts, circumstances, events or
documents not disclosed to me in the course of my examination referred to above
and subject to the qualifications listed below, I am, at the date hereof, of
the following opinion:
1. The Company has been duly incorporated and is validly existing under the
law of the Netherlands as a legal entity in the form of a "naamloze
vennootschap".
2. The Shares have been duly authorized and will be validly issued by the
Company in accordance with the law of the Netherlands and the provisions
of the Articles of Association applicable thereto and will be fully
paid up and non-assessable.
The opinions expressed above are subject to the following qualification:
(aa) Pursuant to article 3 paragraph 1 of the Netherlands 1995 Act on the
supervision of the securities trade ("Wet toezicht effectenverkeer
1995", the "Securities Act") it is prohibited to offer securities upon
issue in or from within the Netherlands and outside a closed circle or
to hold the prospect of such offering by means of advertisements or
documents. The Securities Board of the Netherlands ("Stichting Toezicht
Effectenverkeer") generally takes the view that the offering of
securities by a company to its employees, managing directors or
supervisory directors and to employees, managing directors or
supervisory directors of subsidiaries ("dochter-
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maatschappijen") of such company within the meaning of article 24a of
Book 2 of the Netherlands Civil Code falls within a "closed circle"
within the meaning of article 3 paragraph 1 of the Securities Act.
According to the Securities Board an offering of securities to a broader
group of persons, including e.g. consultants, does not fall within such
"closed circle". It is uncertain what the legal consequences are of
acting in breach of the prohibition as set out in article 3 paragraph 1
of the Securities Act. It cannot be excluded that the relevant legal act
is null and void or voidable;
Without my prior written consent, this opinion letter may not be transmitted to
or filed with any person, firm, company or institution.
I herewith consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to De Brauw Blackstone Westbroek
under "Item 5. Interests of Named Experts and Counsel" of the Registration
Statement. In giving such consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the United
States Securities Act of 1933, as amended.
Yours faithfully,
/s/ PAUL CRONHEIM
Paul Cronheim
<PAGE> 1
EXHIBIT 23.1
Consent of Moret Ernst & Young Accountants, Independent Auditors
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 1993 Stock Plan of our report dated January 24,
1997, with respect to the consolidated financial statements of Baan Company N.V.
included in its Annual Report (Form 20-F) for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
/s/ MORET ERNST & YOUNG ACCOUNTANTS
MORET ERNST & YOUNG ACCOUNTANTS
Utrecht, The Netherlands
September 4, 1997
