<PAGE>
As filed with the Securities and Exchange Commission on February 25, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
Siebel Systems, Inc.
(Exact name of registrant as specified in its charter)
-----------------
Delaware 94-3187233
(State of Incorporation) (I.R.S. Employer Identification No.)
-----------------
1855 South Grant Street
San Mateo, California 94402
(Address of principal executive offices)
-----------------
Siebel Systems, Inc.
1998 Equity Incentive Plan
(Full Title of the Plan)
Thomas M. Siebel
Chairman and Chief Executive Officer
Siebel Systems, Inc.
1855 South Grant Street
San Mateo, California 94402
(650) 295-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------
Copies to:
Eric C. Jensen, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(650) 843-5000
-----------------
This Registration Statement will become effective immediately upon filing
with the Securities and Exchange Commission. Sales of the registered
securities will begin as soon as reasonably practicable after the effective
date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered (1) Share(2) Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common Stock 10,000,000 $275,842,303.04 $76,684.16
(par value $.001)
Shares issuable pursuant to 6,494,134 $21.47 (2)(a) $139,429,056.98
outstanding options under the
Registrant's 1998 Equity
Incentive Plan (the "Plan")
Shares reserved for future 3,505,866 $38.91 (2)(b) $136,413,246.06
issuance pursuant to
outstanding options under the
Plan
==============================================================================================================================
</TABLE>
(1) This Registration Statement shall cover any additional shares of
Common Stock which become issuable under the plans set forth herein by
reason of any stock dividend, stock split, recapitalization or any other
similar transaction without receipt of consideration which results in an
increase in the number of shares of the Registrant's outstanding Common
Stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee of this offering pursuant to Rule 457(h) promulgated under
the Securities Act of 1933, as amended (the "Securities Act"). The
offering price per share and aggregate offering price are based on (a) the
weighted average exercise price for shares subject to outstanding options
granted by Siebel Systems, Inc. (the "Registrant") under the Registrant's
1998 Equity Incentive Plan (the "Plan") or (b) the average of the high and
low prices of the Registrant's Common Stock as reported on the Nasdaq Stock
Market on February 18, 1999 for shares reserved for future issuance under
the Plan.
<PAGE>
PART II
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 (File No. 0-20725), including all material incorporated by
reference therein;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998 (File No. 0-20725), including all material incorporated by
reference therein;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998 (File No. 0-20725), including all material incorporated by
reference therein;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998 (File No. 0-20725), including all material incorporated
by reference therein;
(e) The Registrant's Current Report on Form 8-K (File No. 0-20725),
dated March 3, 1998;
(f) The Registrant's Current Report on Form 8-K (File No. 0-20725),
dated March 16, 1998;
(g) The Registrant's Current Report on Form 8-K (File No. 0-20725),
dated May 19, 1998;
(h) The Registrant's Current Report on Form 8-K (File No. 0-20725),
dated May 29, 1998;
(i) The Registrant's Current Report on Form 8-K (File No. 0-20725),
dated November 25, 1998; and
(j) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A (File No. 0-20725).
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (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 then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this Registration Statement
from the date of the filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by Cooley Godward LLP ("Cooley Godward"). As of the
date of the Prospectus, certain members and associates of Cooley Godward own an
aggregate of approximately 4,600 shares of Common Stock. In addition, James C.
Gaither, a director of the Company and a partner of Cooley Godward, owns 118,414
shares of Common Stock and has options to purchase 208,000 shares of Common
Stock. Eric C. Jensen, a partner of Cooley Godward, is the Assistant Secretary
of the Company.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act.
The Registrant's Certificate of Incorporation, as amended, provides for
the elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. These provisions
do not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such an injunctive or other forms of non-monetary relief will
remain available under Delaware law. In addition, each director will continue to
be subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
The Registrant has entered into agreements with its directors and
executive officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant, as amended
to date./1/
4.2 Bylaws of the Registrant./2/
4.3 Specimen Stock Certificate./2/
4.4 Restated Investor Rights Agreement, dated December 1, 1995, between
the Registrant and certain investors, as amended April 30, 1996 and
June 14, 1996./2/
5.1 Opinion of Cooley Godward LLP./3/
23.1 Consent of KPMG LLP, Independent Auditors./3/
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages./3/
99.1 Siebel Systems, Inc. 1998 Equity Incentive Plan./3/
99.2 Form of option agreement under the Siebel Systems, Inc. 1998 Equity
Incentive Plan./3/
</TABLE>
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/1/ Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (No. 333 07983), as amended.
/2/ Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (No. 333-03751), as amended.
/3/ Filed herewith.
<PAGE>
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
twenty percent (20%) change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities 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 and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Mateo, State of California, on this 25th day of
February, 1999.
Siebel Systems, Inc.
/s/ Howard H. Graham
By:____________________________________________
Howard H. Graham
Senior Vice President, Finance and
Administration and Chief Financial
Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas M. Siebel and Howard H. Graham, and each
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ---------------------------- --------------------
<S> <C> <C>
/s/ Thomas M. Siebel
_____________________________________ Chairman of the Board of February 25, 1999
Thomas M. Siebel Directors and Chief Executive
Officer
(Principal Executive Officer)
/s/ Howard H. Graham
_____________________________________ Senior Vice President, Finance February 25, 1999
Howard H. Graham and Administration and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Eric E. Schmidt
_____________________________________ Director February 25, 1999
Eric E. Schmidt
/s/ James C. Gaither
_____________________________________ Director February 25, 1999
James C. Gaither
/s/ George T. Shaheen
_____________________________________ Director February 25, 1999
George T. Shaheen
/s/ Charles R. Schwab
_____________________________________ Director February 25, 1999
Charles R. Schwab
/s/ A. Michael Spence
_____________________________________ Director February 25, 1999
A. Michael Spence
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<C> <S>
4.1 Restated Certificate of Incorporation of the Registrant, as amended to
date./1/
4.2 Bylaws of the Registrant./2/
4.3 Specimen Stock Certificate./2/
4.4 Restated Investor Rights Agreement, dated December 1, 1995, between
the Registrant and certain investors, as amended April 30, 1996 and
June 14, 1996./2/
5.1 Opinion of Cooley Godward LLP./3/
23.1 Consent of KPMG LLP, Independent Auditors./3/
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages./3/
99.1 Siebel Systems, Inc. 1998 Equity Incentive Plan./3/
99.2 Form of option agreement under the Siebel Systems, Inc. 1998 Equity
Incentive Plan./3/
</TABLE>
- --------------------------------------------------------------------------------
/1/ Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (No. 333 07983), as amended.
/2/ Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (No. 333-03751), as amended.
/3/ Filed herewith.
<PAGE>
Exhibit 5.1
February 25, 1999
Siebel Systems, Inc.
1855 South Grant Street
San Mateo, CA 94402
You have requested our opinion with respect to certain matters in connection
with the filing by Siebel Systems, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 10,000,000 shares of the
Company's Common Stock, $.001 par value (the "Shares"), pursuant to the exercise
of options with respect to the common stock of Siebel Systems, Inc., a Delaware
corporation ("Siebel"), under Siebel's 1998 Equity Incentive Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, the Company's Amended and Restated Certificate of
Incorporation and Bylaws, as amended to date, and such other documents, records,
certificates, memoranda and other instruments as we deem necessary as a basis
for this opinion. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
/s/ Eric C. Jensen
By: ________________________________
Eric C. Jensen
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Siebel Systems, Inc.:
We consent to incorporation herein by reference of our reports dated July 16,
1998, relating to the consolidated balance sheets of Siebel Systems, Inc. and
subsidiaries as of December 31, 1997 and 1996, and the related statements of
operations, stockholders' equity, and cash flows for the years in the
three-year period ended December 31, 1997, and the related consolidated
financial statement schedule, which reports appear in the Form 8-K of Siebel
Systems, Inc. dated November 25, 1998.
/s/ KPMG LLP
Mountain View, California
February 19, 1999
<PAGE>
Exhibit 99.1
SIEBEL SYSTEMS, INC.
1998 EQUITY INCENTIVE PLAN
Adopted by Board on October 28, 1998
1. Purposes.
(a) The purpose of the Plan is to provide a means by which selected
Employees of and Consultants to the Company, and its Affiliates, may be given an
opportunity to benefit from increases in value of the stock of the Company
through the granting of (i) Nonstatutory Stock Options, (ii) stock bonuses, and
(iii) rights to purchase restricted stock, all as defined below.
(b) The Company, by means of the Plan, seeks to retain the services of
persons (other than Directors and Employees serving as Officers of the Company
or its Affiliates) who are now Employees of or Consultants to the Company or its
Affiliates, to secure and retain the services of new Employees and Consultants,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company and its Affiliates.
(c) The Company intends that the Stock Awards issued under the Plan shall,
in the discretion of the Board or any Committee to which responsibility for
administration of the Plan has been delegated pursuant to subsection 3(c), be
either (i) Nonstatutory Stock Options granted pursuant to Section 6 hereof, or
(ii) stock bonuses or rights to purchase restricted stock granted pursuant to
Section 7 hereof.
2. Definitions.
(a) "Affiliate" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in Rule 405 of
Regulation C promulgated under the federal Securities Act of 1933.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in accordance with
subsection 3(c) of the Plan.
(e) "Company" means Siebel Systems, Inc., a Delaware corporation.
(f) "Consultant" means any person, including an advisor, engaged by the
Company or an Affiliate of the Company to render consulting services and who is
compensated for such services, provided that the term "Consultant" shall not
include those persons who render services as a Director.
(g) "Continuous Status as an Employee or Consultant" means that the service
of an individual to the Company, whether as an Employee or Consultant, is not
interrupted or terminated. The Board, in its sole discretion, may determine
whether Continuous Status as an Employee or Consultant shall be considered
interrupted in the case of: (i) any leave of absence approved by the Board,
including sick leave, military leave, or any other personal leave; or (ii)
transfers between locations of the Company or between the Company, Affiliates or
their successors.
(h) "Director" means a member of the Board.
1
<PAGE>
(i) "Disability" means permanent and total disability as defined in Section
22(e)(3) of the Code.
(j) "Employee" means any person employed by the Company or any Affiliate of
the Company. Neither service as a Director nor payment of a director's fee by
the Company shall be sufficient to constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(l) "Fair Market Value" means, as of any date, the value of the common
stock of the Company, determined as follows:
(i) If the common stock is listed on any established stock exchange or
traded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair
Market Value of a share of common stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such
exchange or market (or the exchange or market with the greatest volume of
trading in the Company's common stock) on the last market trading day prior to
the day of determination, as reported in The Wall Street Journal or such other
source as the Board deems reliable.
(ii) In the absence of such markets for the common stock, the Fair
Market Value shall be determined in good faith by the Board.
(m) "Nonstatutory Stock Option" means an Option not intended to qualify as
an incentive stock option pursuant to Section 422 of the Code and the
regulations promulgated thereunder.
(n) "Officer" means a person who is an officer of the Company within the
meaning of Rule 4460(i)(1)(A) of the Rules of the National Association of
Securities Dealers, Inc.
(o) "Option" means a stock option granted pursuant to the Plan.
(p) "Option Agreement" means a written agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. Each
Option Agreement shall be subject to the terms and conditions of the Plan.
(q) "Optionee" means an Employee or Consultant who holds an outstanding
Option.
(r) "Plan" means this 1998 Equity Incentive Plan.
(s) "Stock Award" means any right granted under the Plan, including any
Option, any stock bonus and any right to purchase restricted stock.
(t) "Stock Award Agreement" means a written agreement between the Company
and a holder of a Stock Award evidencing the terms and conditions of an
individual Stock Award grant. Each Stock Award Agreement shall be subject to the
terms and conditions of the Plan.
3. Administration.
(a) The Plan shall be administered by the Board unless and until the Board
delegates administration to a Committee, as provided in subsection 3(c).
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the Plan:
2
<PAGE>
(i) To determine from time to time which of the persons eligible
under the Plan shall be granted Stock Awards; when and how each Stock Award
shall be granted; whether a Stock Award will be a Nonstatutory Stock Option, a
stock bonus, a right to purchase restricted stock, or a combination of the
foregoing; the provisions of each Stock Award granted (which need not be
identical), including the time or times when a person shall be permitted to
receive stock pursuant to a Stock Award; and the number of shares with respect
to which a Stock Award shall be granted to each such person.
(ii) To construe and interpret the Plan and Stock Awards granted under
it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the Plan or in any Stock Award Agreement,
in a manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective.
(iii) To amend the Plan or a Stock Award as provided in Section 12.
(iv) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company which are not in conflict with the provisions of the Plan.
(c) The Board may delegate administration of the Plan to a committee
composed of one or more members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board (and references in this Plan to the Board shall thereafter be to
the Committee), subject, however, to such resolutions, not inconsistent with the
provisions of the Plan, as may be adopted from time to time by the Board. The
Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
4. Shares Subject to the Plan.
(a) Subject to the provisions of Section 11 relating to adjustments upon
changes in stock, the number of shares of stock that may be issued pursuant to
Stock Awards shall not exceed in the aggregate ten million (10,000,000) shares
of the Company's common stock. If any Stock Award shall for any reason expire or
otherwise terminate, in whole or in part, without having been exercised in full,
the stock not acquired under such Stock Award shall revert to and again become
available for issuance under the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
5. Eligibility.
Stock Awards may be granted only to Employees or Consultants who are not (i)
Officers (other than vice presidents of the Company), (ii) Directors, or (iii)
then subject to Section 16 of the Exchange Act. Provided however, that the
aggregate number of shares made subject to Stock Awards granted to eligible
Officers cannot exceed the number necessary to preserve the treatment of the
Plan as a "broadly based" plan within the meaning of Rule 4460(i)(1)(A) of the
Rules of the National Association of Securities Dealers, Inc.
6. Option Provisions.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten (10)
years from the date it was granted.
3
<PAGE>
(b) Price. The exercise price of each Nonstatutory Stock Option shall be
not less than eighty-five percent (85%) of the Fair Market Value of the stock
subject to the Option on the date the Option is granted.
(c) Consideration. The purchase price of stock acquired pursuant to an
Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the Option is exercised, or (ii) at
the discretion of the Board or the Committee, at the time of the grant of the
Option, (A) by delivery to the Company of other common stock of the Company, (B)
according to a deferred payment arrangement, except that payment of the common
stock's "par value" (as defined in the Delaware General Corporation Law) shall
not be made by deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of the
Company) with the person to whom the Option is granted or to whom the Option is
transferred pursuant to subsection 6(d), or (C) in any other form of legal
consideration that may be acceptable to the Board.
In the case of any deferred payment arrangement, interest shall be
payable at least annually and shall be charged at the minimum rate of interest
necessary to avoid the treatment as interest, under any applicable provisions of
the Code, of any amounts other than amounts stated to be interest under the
deferred payment arrangement.
(d) Transferability. An Option shall not be transferable except by will or
by the laws of descent and distribution (and shall be exercisable during the
lifetime of the person to whom the Option is granted only by such person) unless
the applicable Option Agreement expressly provides for other transferability.
Notwithstanding the foregoing, the person to whom the Option is granted may, by
delivering written notice to the Company, in a form satisfactory to the Company,
designate a third party who, in the event of the death of the Optionee, shall
thereafter be entitled to exercise the Option.
(e) Vesting. The total number of shares of stock subject to an Option may,
but need not, be allotted in periodic installments (which may, but need not, be
equal). The Option Agreement may provide that from time to time during each of
such installment periods, the Option may become exercisable ("vest") with
respect to some or all of the shares allotted to that period, and may be
exercised with respect to some or all of the shares allotted to such period
and/or any prior period as to which the Option became vested but was not fully
exercised. The Option may be subject to such other terms and conditions on the
time or times when it may be exercised (which may be based on performance or
other criteria) as the Board may deem appropriate. The vesting provisions of
individual Options may vary. The provisions of this subsection 6(e) are subject
to any Option provisions governing the minimum number of shares as to which an
Option may be exercised.
(f) Termination of Employment or Consulting Relationship. In the event an
Optionee's Continuous Status as an Employee or Consultant terminates (other than
upon the Optionee's death or disability), the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it as of the
date of termination, unless the Option Agreement expressly provides that the
Option may become exercisable for additional shares after the date of
termination) but only within such period of time ending on the earlier of (i)
the date three (3) months following the termination of the Optionee's Continuous
Status as an Employee or Consultant (or such longer or shorter period specified
in the Option Agreement), or (ii) the expiration of the term of the Option as
set forth in the Option Agreement. If, after termination, the Optionee does not
exercise his or her Option within the time specified in the Option Agreement,
the Option shall terminate, and the shares covered by such Option shall revert
to and again become available for issuance under the Plan.
An Optionee's Option Agreement may also provide that if the exercise
of the Option following the termination of the Optionee's Continuous Status as
an Employee or Consultant (other than upon the Optionee's death or disability)
would result in liability under Section 16(b) of the Exchange Act, then the
Option shall terminate on the earlier of (i) the expiration of the term of the
Option set forth in the Option Agreement, or (ii) the tenth (10th) day after the
last date on which such exercise would result in such liability under Section
16(b) of the Exchange Act. Finally, an Optionee's Option Agreement may also
provide that if the exercise of the Option following the termination of the
Optionee's Continuous Status as an Employee or Consultant (other than upon the
Optionee's death or disability) would be prohibited at any time solely because
the issuance of shares would violate the registration requirements under the
Act, then the Option shall terminate on the earlier of (i) the expiration of the
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term of the Option set forth in the first paragraph of this subsection 6(f), or
(ii) the expiration of a period of three (3) months after the termination of the
Optionee's Continuous Status as an Employee or Consultant during which the
exercise of the Option would not be in violation of such registration
requirements.
(g) Disability of Optionee. In the event an Optionee's Continuous Status as
an Employee or Consultant terminates as a result of the Optionee's Disability,
the Optionee may exercise his or her Option (to the extent that the Optionee was
entitled to exercise it as of the date of termination, unless the Option
Agreement expressly provides that the Option may become exercisable for
additional shares after the date of termination), but only within such period of
time ending on the earlier of (i) the date six (6) months following such
termination (or such longer or shorter period specified in the Option
Agreement), or (ii) the expiration of the term of the Option as set forth in the
Option Agreement. If, after termination, the Optionee does not exercise his or
her Option within the time specified herein, the Option shall terminate, and the
shares covered by such Option shall revert to and again become available for
issuance under the Plan.
(h) Death of Optionee. In the event of the death of an Optionee during, or
within a period specified in the Option Agreement after the termination of, the
Optionee's Continuous Status as an Employee or Consultant, the Option may be
exercised (to the extent the Optionee was entitled to exercise the Option as of
the date of death) by the Optionee's estate, by a person who acquired the right
to exercise the Option by bequest or inheritance, but only within the period
ending on the earlier of (i) the date twelve (12) months following the date of
death (or such longer or shorter period specified in the Option Agreement), or
(ii) the expiration of the term of such Option as set forth in the Option
Agreement. If, at the time of death, the Optionee was not entitled to exercise
his or her entire Option, the shares covered by the unexercisable portion of the
Option shall revert to and again become available for issuance under the Plan.
If, after death, the Option is not exercised within the time specified herein,
the Option shall terminate, and the shares covered by such Option shall revert
to and again become available for issuance under the Plan.
7. Terms of Stock Bonuses and Purchases of Restricted Stock.
Each stock bonus or restricted stock purchase agreement shall be in such
form and shall contain such terms and conditions as the Board or the Committee
shall deem appropriate. The terms and conditions of stock bonus or restricted
stock purchase agreements may change from time to time, and the terms and
conditions of separate agreements need not be identical, but each stock bonus or
restricted stock purchase agreement shall include (through incorporation of
provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions as appropriate:
(a) Purchase Price. The purchase price under each restricted stock
purchase agreement shall be such amount as the Board or Committee shall
determine and designate in such agreement, but in no event shall the purchase
price be less than eighty-five percent (85%) of the stock's Fair Market Value on
the date such award is made. Notwithstanding the foregoing, the Board or the
Committee may determine that eligible participants in the Plan may be awarded
stock pursuant to a stock bonus agreement in consideration for past services
actually rendered to the Company or for its benefit.
(b) Transferability. No rights under a stock bonus or restricted stock
purchase agreement shall be transferable except by will or the laws of descent
and distribution, unless the applicable Stock Award Agreement expressly provides
for other transferability.
(c) Consideration. The purchase price of stock acquired pursuant to a stock
purchase agreement shall be paid either: (i) in cash at the time of purchase;
(ii) at the discretion of the Board or the Committee, according to a deferred
payment or other arrangement, except that payment of the common stock's "par
value" (as defined in the Delaware General Corporation Law) shall not be made by
deferred payment or other arrangement (which may include, without limiting the
generality of the foregoing, the use of other common stock of the Company) with
the person to whom the stock is sold; or (iii) in any other form of legal
consideration that may be acceptable to the Board or the Committee in its
discretion. Notwithstanding the foregoing, the Board or the Committee to which
administration of the Plan has been delegated may award stock pursuant to a
stock bonus agreement in consideration for past services actually rendered to
the Company or for its benefit.
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(d) Vesting. Shares of stock sold or awarded under the Plan may, but need
not, be subject to a repurchase option in favor of the Company in accordance
with a vesting schedule to be determined by the Board or the Committee.
(e) Termination of Employment or Consulting Relationship. In the event a
participant's Continuous Status as an Employee or Consultant terminates, the
Company may repurchase or otherwise reacquire, subject to the limitations
described in subsection 7(d), any or all of the shares of stock held by that
person which have not vested as of the date of termination under the terms of
the stock bonus or restricted stock purchase agreement between the Company and
such person.
8. Covenants of the Company.
(a) During the terms of the Stock Awards, the Company shall keep available
at all times the number of shares of stock required to satisfy such Stock
Awards.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the Stock Award; provided,
however, that this undertaking shall not require the Company to register under
the Securities Act of 1933, as amended (the "Securities Act") either the Plan,
any Stock Award or any stock issued or issuable pursuant to any such Stock
Award. If, after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell stock
upon exercise of such Stock Awards unless and until such authority is obtained.
9. Use of Proceeds from Stock.
Proceeds from the sale of stock pursuant to Stock Awards shall
constitute general funds of the Company.
10. Miscellaneous.
(a) The Board shall have the power to accelerate the time at which a Stock
Award may first be exercised or the time during which a Stock Award or any part
thereof will vest pursuant to subsection 6(e) or 7(d), notwithstanding the
provisions in the Stock Award stating the time at which it may first be
exercised or the time during which it will vest.
(b) Neither an Employee or Consultant, nor any person to whom a Stock Award
is transferred under subsection 6(d) or 7(b) shall be deemed to be the holder
of, or to have any of the rights of a holder with respect to, any shares subject
to such Stock Award unless and until such person has satisfied all requirements
for exercise of the Stock Award pursuant to its terms.
(c) Nothing in the Plan or any instrument executed or Stock Award granted
pursuant thereto shall confer upon any Employee, Consultant or other holder of
Stock Awards any right to continue in the employ of the Company or any Affiliate
(or to continue acting as a Consultant) or shall affect the right of the Company
or any Affiliate to terminate the employment of any Employee with or without
cause, or to terminate the relationship of any Consultant in accordance with the
terms of that Consultant's agreement with the Company or Affiliate to which such
Consultant is providing services.
(d) Securities Law Compliance. The Company may require any person to whom a
Stock Award is granted, or any person to whom a Stock Award is transferred
pursuant to subsection 6(d) or 7(b), as a condition of exercising or acquiring
stock under any Stock Award, (1) to give written assurances satisfactory to the
Company as to such person's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and business
matters, and that he or she is capable of evaluating, alone or together with the
purchaser representative, the
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merits and risks of exercising the Stock Award; and (2) to give written
assurances satisfactory to the Company stating that such person is acquiring the
stock subject to the Stock Award for such person's own account and not with any
present intention of selling or otherwise distributing the stock. The foregoing
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (i) the issuance of the shares upon the exercise or acquisition
of stock under the Stock Award has been registered under a then currently
effective registration statement under the Securities Act, or (ii) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws. The Company may require the holder of the Stock Award to
provide such other representations, written assurances or information which the
Company shall determine is necessary, desirable or appropriate to comply with
applicable securities and other laws as a condition of granting a Stock Award to
such person or permitting the holder of the Stock Award to exercise the Stock
Award. The Company may, upon advice of counsel to the Company, place legends on
stock certificates issued under the Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws, including, but
not limited to, legends restricting the transfer of the stock.
(e) Withholding. To the extent provided by the terms of a Stock Award
Agreement, the person to whom a Stock Award is granted may satisfy any federal,
state or local tax withholding obligation relating to the exercise or
acquisition of stock under a Stock Award by any of the following means or by a
combination of such means: (1) tendering a cash payment; (2) authorizing the
Company to withhold shares from the shares of the common stock otherwise
issuable to the participant as a result of the exercise or acquisition of stock
under the Stock Award; or (3) delivering to the Company owned and unencumbered
shares of the common stock of the Company.
11. Adjustments Upon Changes in Stock.
(a) If any change is made in the stock subject to the Plan, or subject to
any Stock Award, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company), the Plan will be appropriately adjusted in the class(es) and the
maximum number of shares subject to the Plan pursuant to subsection 4(a), and
the outstanding Stock Awards will be appropriately adjusted in the class(es) and
number of shares and price per share of stock subject to such outstanding Stock
Awards. Such adjustments shall be made by the Board or the Committee, the
determination of which shall be final, binding and conclusive. (The conversion
of any convertible securities of the Company shall not be treated as a
"transaction not involving the receipt of consideration by the Company.")
(b) In the event of: (1) a dissolution, liquidation or sale of all or
substantially all of the assets of the Company; (2) a merger or consolidation in
which the Company is not the surviving corporation; (3) a reverse merger in
which the Company is the surviving corporation but the shares of the Company's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, then to the extent permitted by applicable law: (i) any
surviving corporation or an Affiliate of such surviving corporation shall assume
any Stock Awards outstanding under the Plan or shall substitute similar Stock
Awards for those outstanding under the Plan, or (ii) such Stock Awards shall
continue in full force and effect. In the event any surviving corporation and
its Affiliates refuse to assume or continue such Stock Awards, or to substitute
similar Stock Awards for those outstanding under the Plan, then, with respect to
Stock Awards held by persons then performing services as Employees or
Consultants, the time during which such Stock Awards may be exercised shall be
accelerated and the Stock Awards terminated if not exercised prior to such
event.
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12. Amendment of the Plan and Stock Awards.
(a) The Board at any time, and from time to time, may amend the Plan.
(b) The Board, in its sole discretion, may submit the Plan and/or any
amendment to the Plan for stockholder approval.
(c) It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide those eligible with
the maximum benefits provided or to be provided under the provisions of the Code
and the regulations promulgated thereunder.
(d) Rights and obligations under any Stock Award granted before amendment
of the Plan shall not be impaired by any amendment of the Plan unless (i) the
Company requests the consent of the person to whom the Stock Award was granted
and (ii) such person consents in writing.
(e) The Board at any time, and from time to time, may amend the terms of
any one or more Stock Award; provided, however, that the rights and obligations
under any Stock Award shall not be impaired by any such amendment unless (i) the
Company requests the consent of the person to whom the Stock Award was granted
and (ii) such person consents in writing.
13. Termination or Suspension of the Plan.
(a) The Board may suspend or terminate the Plan at any time. No Stock
Awards may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any Stock Award granted while the Plan is
in effect shall not be impaired by suspension or termination of the Plan, except
with the written consent of the person to whom the Stock Award was granted.
14. Effective Date of Plan.
The Plan shall become effective on October 28, 1998.
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Exhibit 99.2
SIEBEL SYSTEMS, INC.
1998 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
SIEBEL SYSTEMS, INC. (the "Company") is pleased to inform you that its Board
of Directors has granted you an option to purchase shares of the common stock of
the Company ("Common Stock") under the Siebel Systems, Inc. 1998 Equity
Incentive Plan (the "Plan").
The details of your option are as follows:
Optionee:
- -------- -------------------------------
Number of Shares:
- ---------------- -----------------------
Exercise Price: $ per share
- -------------- --------------
Grant Date:
- ---------- ------------------------------
Expiration Date: , unless sooner terminated in accordance
- --------------- ---------------------
with Section 5 of the Additional Terms and Conditions attached.
Vesting Commencement Date:
- -------------------------
Vesting Schedule: % on anniversary of the Vesting Commencement
- ---------------- -------- ------
Date and
% each anniversary thereafter until fully vested.
---------- ----------
Vesting is subject to termination under the circumstances set forth in
the attached Additional Terms and Conditions.
Tax Qualification: This option ____ is/____ is not intended to qualify for the
- -----------------
federal income tax benefits available to an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
Additional Terms and Optionee's Acknowledgements: This option is subject to all
- ------------------------------------------------
of the terms and conditions of the Additional Terms and Conditions attached
hereto. The undersigned optionee acknowledges receipt of this Option Agreement
and the Additional Terms and Conditions (with exhibits referred to therein), and
understands and agrees to all terms contained therein. Optionee further
acknowledges that as of the date of grant of this option, this Option Agreement,
together with the Additional Terms and Conditions, set forth the entire
understanding between optionee and the Company regarding the acquisition of
stock in the Company and supersedes all prior oral and written agreements on
that subject with the exception of (i) the option agreements previously granted
and delivered to optionee under the Plan (including predecessors to the Plan),
and (ii) the following other agreements:
Other Agreements: ____________________________________________
____________________________________________
____________________________________________
SIEBEL SYSTEMS, INC. OPTIONEE:__________________________
By: ________________________ ___________________________________
Signature
Name:_______________________
Date:_______________________ Date: _____________________________
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