As filed with the Securities and Exchange Commission on March 1, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
INFORMIX CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State of incorporation)
94-3011736
(I.R.S. Employer Identification No.)
4100 Bohannon Drive
Menlo Park, California 94025
(Address, including zip code, of Registrant's principal executive
offices)
ILLUSTRA INFORMATION TECHNOLOGIES, INC. 1992 EQUITY INCENTIVE PLAN
AND OTHER OPTIONS
(Full title of the plan)
DAVID H. STANLEY
Vice President, Legal and Corporate Services,
General Counsel and Secretary
INFORMIX CORPORATION
4100 Bohannon Drive
Menlo Park, California 94025
(415) 926-6300
(Name, address, and telephone number, including area code, of agent for
service)
Copies to:
ROGER E. GEORGE, ESQ.
Wilson, Sonsini, Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(415) 493-9300
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of Each Maximum Maximum
Class of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
be Registered Registered Per Share Price(1) Fee(1)
<S> <C> <C> <C> <C>
Common Stock($0.01 par value) 2,295,716 $28.10 $7,106,071 $2,451
</TABLE>
(1) Calculated in accordance with Rule 457(h)(1) based on the aggregate
exercise price of the stock options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference the following documents and
information heretofore filed with the Securities and Exchange
Commission:
Item 3(a).
The Annual Report of Registrant on Form 10-K for the fiscal year ended
December 31, 1994 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
Item 3(b).
All other reports filed by the Registrant 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 10-K referred to in (a) above which other
reports specifically include Registrant's Current Report on Form 8-K
filed on February 8, 1996 and Registrant's Current Report on Form 8-K
filed on March 1, 1996.
Item 3(c).
The description of the Registrant's Common Stock which is contained in
Registrant's Registration Statement on Form S-4 dated February 7, 1996,
(Registration No. 333-143) on pages 89 through 90 and any amendment or
report filed for the purpose of updating such description.
All documents, reports and definitive proxy or information statements
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act of 1934, 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 in this registration
statement and to be part hereof from the date of filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Delaware law authorizes corporations to eliminate the personal liability
of directors to corporations and their stockholders for monetary damages
for breach or alleged breach of the director's duty of care. While the
relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on director's duty
of loyalty, acts or omissions not in good faith or involving intentional
misconduct or knowing violations of the law, illegal payment of
dividends and approval of any transaction from which a director derives
an improper personal benefit.
The Company has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of directors for monetary damages
for breach or alleged breach of their duty of due care. The By-laws of
the Company provide for indemnification of its directors and officers to
the full extent permitted by the General Corporation Law of the State of
Delaware, the Company's state of incorporation, including those
circumstances in which indemnification would be discretionary under
Delaware law. The Company has entered into indemnification agreements
with its directors and executive officers. Section 145 of the General
Corporation Law of the State of Delaware provides for indemnification
in terms sufficiently broad to indemnify such individuals, under certain
circumstances, for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act of 1933.
The Company also carries insurance policies in standard form
indemnifying its directors and officers against liabilities arising from
certain acts performed by them in their respective capacities as such.
The policies also provide for reimbursement of the Company for certain
amounts it may be required or permitted to pay pursuant to applicable
law to its directors and officers on account of such liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Document
4.1 Illustra Information Technologies, Inc. 1992 Equity Incentive
Plan.
4.2 Form of 1992 Equity Incentive Plan Incentive Option Agreement.
4.3 Form of 1992 Equity Incentive Plan Nonstatutory Stock Option
Agreement.
4.4 Form of 1992 Equity Incentive Plan Early Exercise Stock
Purchase Agreement.
4.5 Form of Nonstatutory Stock Option Agreement.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Independent Auditors, KPMG Peat Marwick LLP.
23.2 Consent of Independent Auditors, Ernst & Young LLP.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (included in the signature page of this
Registration Statement).
Item 9. Undertakings.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and
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 Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bonafide 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) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement relating to securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Request For Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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 provisions described in Item 6
hereof, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding )
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant, will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Menlo Park, State
of California, on the 1st day of March, 1996.
INFORMIX CORPORATION
By: /s/ Phillip E. White
PHILLIP E. WHITE
President,
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, jointly and severally,
David H. Stanley, Howard H. Graham and Richard C. Blass, and each of
them acting individually, as his attorney-in-fact, each with full power
of substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to any and all
amendments to said Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
Signature Title Date
/s/PHILLIP E. WHITE President, Chief Executive Officer March 1, 1996
Phillip E. White and Chairman of the Board of Directors
(Principal Executive Officer)
/s/HOWARD H. GRAHAM Vice President, Finance and Chief March 1, 1996
Howard H. Graham Financial Officer
(Principal Financial Officer)
/s/RICHARD C. BLASS Vice President, Corporate Controller March 1, 1996
Richard C. Blass and Chief Accounting Officer
(Principal Accounting Officer)
/s/ALBERT F. KNORP, JR. Director March 1, 1996
Albert F. Knorp, Jr.
/s/JAMES L. KOCH Director March 1, 1996
James L. Koch
/s/THOMAS A. McDONNELL Director March 1, 1996
Thomas A. McDonnell
/s/CYRIL J. YANSOUNI Director March 1, 1996
Cyril J. Yansouni
INDEX TO EXHIBITS
Exhibit
Number Exhibit
4.1 Illustra Information Technologies, Inc. 1992 Incentive Equity
Plan
4.2 Form of 1992 Equity Incentive Plan Incentive Option Agreement.
4.3 Form of 1992 Equity Incentive Plan Nonstatutory Stock Option
Agreement.
4.4 Form of 1992 Equity Incentive Plan Early Exercise Stock
Purchase Agreement.
4.5 Form of Nonstatutory Stock Option Agreement.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Independent Auditors, KPMG Peat Marwick LLP
23.2 Consent of Independent Auditors, Ernst & Young LLP
23.3 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included in signature page to this
Registration Statement)
Exhibit 4.1
ILLUSTRA INFORMATION TECHNOLOGIES, INC.
1992 EQUITY INCENTIVE PLAN
Adopted August 5, 1992
amended December 8, 1992
amended August 12, 1993
amended April 19, 1994
amended April 28, 1995
amended December 7, 1995
1. PURPOSES.
(a) The purpose of the 1992 Equity Incentive Plan (the "Plan") is
to provide a means by which employees or directors of or 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) Incentive Stock Options, (ii) Nonstatutory Stock Options, and
(iii) rights to purchase stock, all as defined.
(b) The Company, by means of the Plan, seeks to retain the services
of persons who are now Employees or Directors of or Consultants to the
Company, to secure and retain the services of new Employees, Directors
and Consultants, and to provide incentives for such persons to exert
maximum efforts for the success of the Company.
(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) Options granted pursuant to
paragraph 6 hereof, including Incentive Stock Options and Nonstatutory
Stock Options, or (ii) rights to purchase stock granted pursuant to
paragraph 7 hereof. All Options shall be separately designated
Incentive Stock Options or Nonstatutory Stock Options at the time of
grant, and in such form as issued pursuant to section 6, and a separate
certificate or certificates will be issued for shares purchased on
exercise of each type of Option.
2. DEFINITIONS.
(a) "Affiliate" means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are
defined in Sections 424(e) and (f) respectively, of the Code.
(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 ILLUSTRA INFORMATION TECHNOLOGIES, INC., a
Delaware corporation.
(f) "Consultant" means any person, including an advisor, engaged by
the Company or an Affiliate to render services and who is compensated
for such services, provided that the term "Consultant" shall not include
Directors who are paid only a director's fee by the Company or who are
not compensated by the Company for their services as Directors.
(g) "Director" means a member of the Board.
(h) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(i) "Disinterested Person" means a Director: (i) who was not
during the one year prior to service as an administrator of the Plan
granted or awarded equity securities pursuant to the Plan or any other
plan of the Company or any of its affiliates entitling the participants
therein to acquire equity securities of the Company or any of its
affiliates except as permitted by Rule 16b-3(c)(2)(i); or (ii) who is
otherwise considered to be a "disinterested person" in accordance with
Rule 16b-3(c)(2)(i), or any other applicable rules, regulations or
interpretations of the Securities and Exchange Commission.
(j) "Employee" means any person, including Officers and Directors,
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) "Incentive Stock Option" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code
and the regulations promulgated thereunder.
(m) "Nonstatutory Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
(n) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(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. The Option Agreement is subject to the terms
and conditions of the Plan.
(q) "Optionee" means an Employee, Director or Consultant who holds
an outstanding Option.
(r) "Plan" means this 1992 Equity Incentive Plan.
(s) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3, as in effect when discretion is being exercised
with respect to the Plan.
(t) "Stock Award" means any right granted under the Plan, including
any Option, and any right to purchase stock.
(u) "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. The Stock Award
Agreement is 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:
(1) To determine from time to time which of the persons eligible
under the Plan shall be granted Stock Awards; when and how Stock Awards
shall be granted; whether a Stock Award will be an Incentive Stock
Option, a Nonstatutory Stock Option, a right to purchase 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 Stock Awards shall be granted to
each such person.
(2) 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.
(3) To amend the Plan as provided in Section 14.
(c) The Board may delegate administration of the Plan to a
committee composed of not fewer than two (2) members (the "Committee"),
all of the members of which Committee shall be disinterested persons, if
required and as defined by the provisions of subsection 3(d). 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.
Additionally, prior to the date of the first registration of an equity
security of the Company under Section 12 of the Exchange Act, and
notwithstanding anything to the contrary contained herein, the Board may
delegate administration of the Plan to any person or persons and the
term "Committee" shall apply to any person or persons to whom such
authority has been delegated.
(d) Any requirement that an administrator of the Plan be a
Disinterested Person shall not apply (i) prior to the date of the first
registration of an equity security of the Company under Section 12 of
the Exchange Act, or (ii) if the Board or the Committee expressly
declares that such requirement shall not apply. Any Disinterested
Person shall otherwise comply with the requirements of Rule 16b-3.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of Section 13 relating to adjustments
upon changes in stock, the stock that may be issued pursuant to Stock
Awards shall not exceed in the aggregate four million six hundred
fifty-seven thousand five hundred (4,657,500) shares of the Company's
common stock. If any Stock Award shall for any reason expire or
otherwise terminate without having been exercised in full, the stock not
purchased under such Stock Award shall again become available for the
Plan. [amended August 12, 1993, April 19, 1994, April 28, 1995 and
December 7, 1995]
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
5. ELIGIBILITY.
(a) Incentive Stock Options may be granted only to Employees.
Stock Awards other than Incentive Stock Options may be granted only to
Employees, Directors or Consultants.
(b) A Director shall in no event be eligible for the benefits of
the Plan unless at the time discretion is exercised in the selection of
the Director as a person to whom Stock Awards may be granted, or in the
determination of the number of shares which may be covered by Stock
Awards granted to the Director: (i) the Board has delegated its
discretionary authority over the Plan to a Committee which consists
solely of Disinterested Persons; or (ii) the Plan otherwise complies
with the requirements of Rule 16b-3. The Board shall otherwise comply
with the requirements of Rule 16b-3. This subsection 5(b) shall not
apply (i) prior to the date of the first registration of an equity
security of the Company under Section 12 of the Exchange Act, or (ii)
if the Board or Committee expressly declares that it shall not apply.
(c) No person shall be eligible for the grant of an Option if, at
the time of grant, such person owns (or is deemed to own pursuant to
Section 424(d) of the Code) stock possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of the
Company or of any of its Affiliates unless the exercise price of such
Option is at least one hundred ten percent (110%) of the fair market
value of such stock at the date of grant and the Option is not
exercisable after the expiration of five (5) years from the date of
grant. [amended December 8, 1992]
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.
(b) Price. The exercise price of each Incentive Stock Option shall
be not less than one hundred percent (100%) of the fair market value of
the stock subject to the Option on the date the Option is granted. 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,
either at the time of the grant or exercise of the Option, (A) by
delivery to the Company of other common stock of the Company, (B)
according to a 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.
(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.
During the remainder of the term of the Option (if its term extends
beyond the end of the installment periods), the option may be exercised
from time to time with respect to any shares then remaining subject to
the Option. 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) Securities Law Compliance. The Company may require any
Optionee, or any person to whom an Option is transferred under
subsection 6(d), as a condition of exercising any such Option, (1) to
give written assurances satisfactory to the Company as to the Optionee'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 merits and risks of exercising the Option;
and (2) to give written assurances satisfactory to the Company stating
that such person is acquiring the stock subject to the Option for such
person's own account and not with any present intention of selling or
otherwise distributing the stock. These requirements, and any
assurances given pursuant to such requirements, shall be inoperative if
(i) the issuance of the shares upon the exercise of the Option has been
registered under a then currently effective registration statement under
the Securities Act of 1933, as amended (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.
(g) Termination of Employment or Relationship as a Director or
Consultant. In the event an Optionee's continuous status as an
Employee, Director or Consultant terminates (other than upon the
Optionee's death or Disability), the Optionee may exercise his or her
Option, but only within such period of time as is determined by the
Board, and only to the extent that the Optionee was entitled to exercise
it at the date of termination (but in no event later than the expiration
of the term of such Option as set forth in the Option Agreement). In
the case of an Incentive Stock Option, the Board shall determine such
period of time (in no event to exceed three (3) months from the date of
termination) when the Option is granted. If, at the date of
termination, the Optionee is not entitled to exercise his or her entire
Option, the shares covered by the unexercisable portion of the Option
shall revert to the Plan. 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 the Plan.
(h) Disability of Optionee. In the event an Optionee's continuous
status as an Employee, Director or Consultant terminates as a result of
the Optionee's Disability, the Optionee may exercise his or her Option,
but only within twelve (12) months from the date of such termination (or
such shorter period specified in the Option Agreement), and only to the
extent that the Optionee was entitled to exercise it at the date of such
termination (but in no event later than the expiration of the term of
such Option as set forth in the Option Agreement). If, at the date of
termination, the Optionee is not entitled to exercise his or her entire
Option, the shares covered by the unexercisable portion of the Option
shall revert to the Plan. 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
the Plan.
(i) Death of Optionee. In the event of the death of an Optionee, the
Option may be exercised, at any time within twelve (12) months following
the date of death (or such shorter period specified in the Option
Agreement) (but in no event later than the expiration of the term of
such Option 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. 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 the Plan. If, after death, the Optionee's estate or a person who
acquired the right to exercise the Option by bequest or inheritance does
not exercise the Option within the time specified herein, the Option
shall terminate, and the shares covered by such Option shall revert to
the Plan.
(j) Early Exercise. The Option may, but need not, include a
provision whereby the Optionee may elect at any time while an Employee,
Director or Consultant to exercise the Option as to any part or all of
the shares subject to the Option prior to the full vesting of the
Option. Any unvested shares so purchased may be subject to a repurchase
right in favor of the Company or to any other restriction the Board
determines to be appropriate.
(k) Withholding. To the extent provided by the terms of an Option
Agreement, the Optionee may satisfy any federal, state or local tax
withholding obligation relating to the exercise of such Option 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 of the Option; or (3) delivering to the Company
owned and unencumbered shares of the common stock of the Company.
7. TERMS OF PURCHASES OF STOCK.
Each 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 purchase agreements
may change from time to time, and the terms and conditions of separate
agreements need not be identical, but each 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 stock
purchase agreement shall be such amount as the Board or Committee shall
determine and designate in such stock purchase agreement; provided,
however, that such purchase price shall not be less than (i) eighty-five
percent (85%) of the fair market value of the stock subject to such
stock purchase agreement if such person owns stock possessing ten
percent (10%) or less of the total combined voting power of all classes
of stock of the Company or of any of its Affiliates, or (ii) one hundred
percent (100%) of the fair market value of the stock subject to such
stock purchase agreement if such person owns stock possessing more than
ten percent (10%) of the total combined voting power of all classes of
stock of the Company or of any of its Affiliates.
(b) Transferability. No rights under a stock purchase
agreement shall be assignable by any participant under the Plan, either
voluntarily or by operation of law, except where such assignment is
required by law or expressly authorized by the terms of the applicable
stock purchase agreement.
(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 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
their discretion.
(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 Relationship as a
Director or Consultant. In the event a Participant's continuous status
as an Employee, Director or Consultant terminates, the Company may
repurchase or otherwise reacquire 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 purchase agreement between the Company and such
person.
(f) Withholding. To the extent provided by the terms of a
stock purchase agreement, the participant may satisfy any federal, state
or local tax withholding obligation relating to the purchase of stock 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 purchase of stock; or (3) delivering to
the Company owned and unencumbered shares of the common stock of the
Company.
8. CANCELLATION AND RE-GRANT OF OPTIONS.
The Board or the Committee shall have the authority to effect,
at any time and from time to time, with the consent of the affected
holders of Options, (i) the repricing of any outstanding Options under
the Plan and/or (ii) the cancellation of any outstanding Options under
the Plan and the grant in substitution therefor of new Options under the
Plan covering the same or different numbers of shares of stock, but
having an exercise price per share not less than eighty-five percent
(85%) of the fair market value (one hundred percent (100%) of the fair
market value in the case of an Incentive Stock Option or, in the case of
a 10% stockholder (as described in subparagraph 5(c)), not less than one
hundred ten percent (110%) of the fair market value) per share of stock
on the new grant date.
9. 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 up to the number of shares of stock authorized under
the Plan
(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 under the Stock
Awards; provided, however, that this undertaking shall not require the
Company to register under 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 under such Stock Awards unless and until such
authority is obtained.
10. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to Stock Awards shall
constitute general funds of the Company.
11. MISCELLANEOUS.
(a) Neither an Optionee nor any person to whom an Option is
transferred under subsection 6(d) 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 Option unless and until such person has satisfied all
requirements for exercise of the Option pursuant to its terms.
(b) Throughout the term of any Option, the Company shall deliver to
the holder of such Option, not later than one hundred twenty (120) days
after the close of each of the Company's fiscal years during the Option
term, (i) a balance sheet and income statement for the preceding year;
and (ii) any other information regarding the Company as comprises the
annual report to the stockholders of the Company provided for in the
bylaws of the Company. [amended December 8, 1992]
(c) Nothing in the Plan or any instrument executed or Stock Award
granted pursuant thereto shall confer upon any Employee, Director,
Consultant, Optionee, 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 Director or Consultant) or shall affect the right of the
Company or any Affiliate to terminate the employment or relationship as
a Director or Consultant of any Employee, Director, Consultant or
Optionee with or without cause.
(d) To the extent that the aggregate fair market value (determined
at the time of grant) of stock with respect to which Incentive Stock
Options granted after 1986 are exercisable for the first time by any
Optionee during any calendar year under all plans of the Company and its
Affiliates exceeds one hundred thousand dollars ($100,000), the Options
or portions thereof which exceed such limit (according to the order in
which they were granted) shall be treated as Nonstatutory Stock Options.
12. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any Stock Award (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property
other than cash, stock split, liquidating dividend, combination of
shares, exchange of shares, change in corporate structure or otherwise),
the Plan and outstanding Stock Awards will be appropriately adjusted in
the class(es) and maximum number of shares subject to the Plan and the
class(es) and number of shares and price per share of stock subject to
outstanding Stock Awards.
(b) In the event of: (1) a merger or consolidation in which the
Company is not the surviving corporation; or (2) 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 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 refuses to assume or continue such Stock Awards, or to
substitute similar stock awards for those outstanding under the Plan,
then such Stock Awards shall be terminated if not exercised prior to
such event. In the event of a dissolution or liquidation of the
Company, any Stock Awards outstanding under the Plan shall terminate if
not exercised prior to such event.
13. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the
Plan. However, except as provided in Section 13 relating to adjustments
upon changes in stock, no amendment shall be effective unless approved
by the shareholders of the Company within twelve (12) months before or
after the adoption of the amendment, where the amendment will:
(i) Increase the number of shares reserved for Stock Awards under
the Plan;
(ii) Modify the requirements as to eligibility for participation in
the Plan to the extent such modification requires stockholder approval
in order for the Plan to satisfy the requirements of Section 422 of the
Code; or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to satisfy the
requirements of Section 422 of the Code or to comply with the
requirements of Rule 16b-3, if applicable.
(b) It is expressly contemplated that the Board may amend the Plan
in any respect the Board deems necessary or advisable to provide
Optionees with the maximum benefits provided or to be provided under the
provisions of the Code and the regulations promulgated thereunder
relating to Incentive Stock Options and/or to bring the Plan and/or
Incentive Stock Options granted under it into compliance therewith.
(c) Rights and obligations under any Stock Award granted before
amendment of the Plan shall not be altered or 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.
14. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on August 4, 2002.
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 altered or impaired by suspension or
termination of the Plan, except with the consent of the person to whom
the Stock Award was granted.
15. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board,
but no Stock Awards granted under the Plan shall be exercisable unless
and until the Plan has been approved by the shareholders of the Company,
and, if required, an appropriate permit has been issued by the
Commissioner of Corporations of the State of California.
Exhibit 4.2
INCENTIVE STOCK OPTION
____________, Optionee:
ILLUSTRA INFORMATION TECHNOLOGIES, INC. (the "Company"), pursuant
to its 1992 Equity Incentive Plan (the "Plan") has this day granted to
you, the optionee named above, an option to purchase shares of the
common stock of the Company ("Common Stock"). This option is intended
to qualify as an "incentive stock option" within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's
employees (including officers), directors and consultants and is
intended to comply with the provisions of Rule 701 promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act").
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this
option is _____________. Subject to the limitations contained herein,
this option shall be exercisable with respect to each installment shown
below on or after the date of vesting applicable to such installment,
provided that you are employed with the Company on that vesting date, as
follows:
Date of Earliest Exercise Number of Shares
(Vesting Date) (Installment)
Last day of 12th month following shares (approx. 20% of total
Commencement Date shares subject to option)
End of 13th through 59th months shares (approx. 1/60 of total
following Commencement Date shares subject to option)
End of 60th month following shares (balance of shares
Commencement Date subject to option)
The Commencement Date for purposes of this Option is _____. The
vesting schedule set forth above shall result in vesting at a rate of no
less that 20% of the total number of shares per year over the five years
from the date the option is granted, provided that no shares shall vest
following termination of your employment with the Company.
2. (a) The exercise price of this option is $______ per
share, being not less than the fair market value of the Common Stock on
the date of grant of this option.
(b) Payment of the exercise price per share is due in
full in cash (including check) upon exercise of all or any part of each
installment which has become exercisable by you. Notwithstanding the
foregoing, this option may be exercised pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board which
results in the receipt of cash (or check) by the Company prior to the
issuance of Common Stock.
3. (a) Subject to the provisions of this option you may
elect at any time during your employment with the Company or an
affiliate thereof, to exercise the option as to any part or all of the
shares subject to this option at any time during the term hereof,
including, without limitation, a time prior to the date of earliest
exercise ("vesting") stated in paragraph 1 hereof; provided, however,
that:
(i) a partial exercise of this option shall be
deemed to cover first vested shares and then the earliest vesting
installment of unvested shares;
(ii) any shares so purchased from installments
which have not vested as of the date of exercise shall be subject to the
purchase option in favor of the Company as described in the Early
Exercise Stock Purchase Agreement attached hereto; and
(iii) you shall enter into an Early Exercise
Stock Purchase Agreement in the form attached hereto with a vesting
schedule that will result in the same vesting as if no early exercise
had occurred.
(b) The election provided in this paragraph 3 to
purchase shares upon the exercise of this option prior to the vesting
dates shall cease upon termination of your employment with the Company
or an affiliate thereof and may not be exercised after the date thereof.
4. The minimum number of shares with respect to which this
option may be exercised at any one time is one hundred (100), except (a)
as to an installment subject to exercise, as set forth in paragraph 1,
which amounts to fewer than one hundred (100) shares, in which case, as
to the exercise of that installment, the number of shares in such
installment shall be the minimum number of shares, and (b) with respect
to the final exercise of this option this minimum shall not apply. In
no event may this option be exercised for any number of shares which
would require the issuance of anything other than whole shares.
5. Notwithstanding anything to the contrary contained herein,
this option may not be exercised unless the shares issuable upon
exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements
of the Act.
6. The term of this option commences on the date hereof and,
unless sooner terminated as set forth below or in the Plan, terminates
on ________________ (the date ten (10) years from the date this option
is granted). In no event may this option be exercised on or after the
date on which it terminates. This option shall terminate prior to the
expiration of its term as follows: three (3) months after the
termination of your employment with the Company or an affiliate of the
Company (as defined in the Plan) for any reason or for no reason unless:
(a) such termination of employment is due to your
permanent and total disability (within the meaning of Section 422(c)(6)
of the Code), in which event the option shall terminate on the earlier
of the termination date set forth above or twelve (12) months following
such termination of employment; or
(b) such termination of employment is due to your
death, in which event the option shall terminate on the earlier of the
termination date set forth above or twelve (12) months after your death;
or
(c) during any part of such three (3) month period
the option is not exercisable solely because of the condition set forth
in paragraph 5 above, in which event the option shall not terminate
until the earlier of the termination date set forth above or until it
shall have been exercisable for an aggregate period of three (3) months
after the termination of employment; or
(d) exercise of the option within three (3) months
after termination of your employment with the Company or with an
affiliate would result in liability under section 16(b) of the
Securities Exchange Act of 1934, in which case the option will terminate
on the earlier of (i) the termination date set forth above, (ii) the
tenth (10th) day after the last date upon which exercise would result in
such liability or (iii) six (6) months and ten (10) days after the
termination of your employment with the Company or an affiliate.
However, this option may be exercised following termination of
employment only as to that number of shares as to which it was
exercisable on the date of termination of employment under the
provisions of paragraph 1 of this option.
7. (a) This option may be exercised, to the extent
specified above, by delivering a notice of exercise (in a form
designated by the Company) together with the exercise price to the
Secretary of the Company, or to such other person as the Company may
designate, during regular business hours, together with such additional
documents as the Company may then require pursuant to subparagraph 6(f)
of the Plan.
(b) By exercising this option you agree that:
(i) the Company may require you to enter an
arrangement providing for the payment by you to the Company of any tax
withholding obligation of the Company arising by reason of (A) the
exercise of this option; (B) the lapse of any substantial risk of
forfeiture to which the shares are subject at the time of exercise; or
(C) the disposition of shares acquired upon such exercise;
(ii) you will notify the Company in writing
within fifteen (15) days after the date of any disposition of any of the
shares of the Common Stock issued upon exercise of this option that
occurs within two (2) years after the date of this option grant or
within one (1) year after such shares of Common Stock are transferred
upon exercise of this option;
(iii) the Company (or a representative of
the underwriters) may, in connection with the first underwritten
registration of the offering of any securities of the Company under the
Act, require that you not sell or otherwise transfer or dispose of any
shares of Common Stock or other securities of the Company during such
period (not to exceed one hundred eighty (180) days) following the
effective date (the "Effective Date") of the registration statement of
the Company filed under the Act as may be requested by the Company or
the representative of the underwriters; provided, however, that such
restriction shall apply only if, on the Effective Date, you are an
officer, director, or owner of more than one percent (1%) of the
outstanding securities of the Company. For purposes of this restriction
you will be deemed to own securities which (1) are owned directly or
indirectly by you, including securities held for your benefit by
nominees, custodians, brokers or pledgees; (2) may be acquired by you
within sixty (60) days of the Effective Date; (3) are owned directly or
indirectly, by or for your brothers or sisters (whether by whole or half
blood), spouse, ancestors and lineal descendants; or (4) are owned,
directly or indirectly, by or for a corporation, partnership, estate or
trust of which you are a shareholder, partner or beneficiary, but only
to the extent of your proportionate interest therein as a shareholder,
partner or beneficiary thereof. You further agree that the Company may
impose stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of such period.
(iv) all shares of Common Stock issued on
exercise of this option shall be subject to a purchase option in favor
of the Company as set forth in this subparagraph 7(b)(iv) (the "Market
Value Option"). In the event your employment with the Company
terminates, for any reason or no reason, with or without cause, then the
Company shall have the right to purchase all or any part of such stock
by exercising the Market Value Option. The Market Value Option may be
exercised by written notice to you and payment of the purchase price in
cash at any time within 90 days after the date your employment
terminates. The exercise price of the Market Value Option shall be the
greater of (1) the price at which the shares were initially purchased
from the Company; or (2) the fair market value of the stock at the time
of such termination as determined by the Board of Directors of the
Company taking into account the book value, present earnings, overall
financial condition and future prospects of the Company. If the
stockholder holding shares subject to the Market Value Option objects to
the value so determined by the Board, then the exercise price of the
Market Value Option shall be the fair market value of the stock being
purchased, on the date of termination, as determined by an independent
appraiser to be designated by the Board of Directors, subject to the
approval of the stockholder, which approval shall not be unreasonably
withheld. The cost of such appraisal shall be paid 50% each by the
Company and by such stockholder. The Market Value Option shall
terminate upon the earlier of (1) _______________ or (2) the date
securities of the Corporation are first offered to the public pursuant
to a registration statement filed with, and declared effective by, the
U.S. Securities and Exchange Commission under the Act, or any successor
to the Act; or (3) the first date on which the shares of the same class
and series as the shares subject to such Option are traded on a public
market. If any shares subject to the Market Value Option are
transferred, such shares shall remain subject to the Market Value Option
in the hands of the transferee, and the certificates evidencing such
shares may bear a legend referring to the Market Value Option. Any and
all new, substituted or additional securities or other property to which
you may be entitled as a result of (A) a stock dividend or liquidating
dividend of cash and/or property, stock split, or other change in the
character or amount of any of the outstanding securities of the Company,
or (B) a consolidation, merger or sale of all, or substantially all, of
the assets of the Company by reason of your ownership of the shares
issued on exercise of this option shall be immediately subject to the
Market Value Option. Upon the occurrence of any event specified in
clause (B) above, the Market Value Option may be assigned to any
successor of the Company, and shall apply if you do not become or shall
cease for any reason to be employed by such successor or its affiliates.
In that case, references herein to the "Company" shall be deemed to
refer to such successor.
(v) all shares of Common Stock issued on
exercise of this option shall be subject to any right of first refusal
set forth in any applicable provisions of the Company's Bylaws and;
(vi) you will at the time of exercise execute
an agreement with the Company implementing the provisions of this
Section 7.
8. This option is not transferable, except by will or by the
laws of descent and distribution, and is exercisable during your life
only by you.
9. This option is not an employment contract and nothing in
this option shall be deemed to create in any way whatsoever any
obligation on your part to continue in the employ of the Company, or of
the Company to continue your employment with the Company.
10. Any notices provided for in this option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt
or, in the case of notices delivered by the Company to you, five (5)
days after deposit in the United States mail, postage prepaid, addressed
to you at the address specified below or at such other address as you
hereafter designate by written notice to the Company.
11. This option is subject to all the provisions of the Plan, a
copy of which is attached hereto and its provisions are hereby made a
part of this option, including without limitation the provisions of
paragraph 6 of the Plan relating to option provisions, and is further
subject to all interpretations, amendments, rules and regulations which
may from time to time be promulgated and adopted pursuant to the Plan.
In the event of any conflict between the provisions of this option and
those of the Plan, the provisions of the Plan shall control.
Dated the _____ day of ____________, ______.
Very truly yours,
ILLUSTRA INFORMATION TECHNOLOGIES, INC.
By ________________________________
Duly authorized on behalf of the
Board of Directors
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and
liabilities with respect to this option are set forth in the option and
the Plan; and
(b) Acknowledges that as of the date of grant of this option,
it sets forth the entire understanding between the undersigned optionee
and the Company and its affiliates regarding the acquisition of stock in
the Company and supersedes all prior oral and written agreements on that
subject with the exception of the following agreements only:
NONE _________________
(Initial)
OTHER _________________________________
_________________________________
_________________________________
_____________________________________
__________________, Optionee
Address: ________________________________
________________________________
ATTACHMENTS:
1992 Equity Incentive Plan
Form of Exercise
Early Exercise Stock Purchase Agreement
Exhibit 4.3
NONSTATUTORY STOCK OPTION
_______________, Optionee:
ILLUSTRA INFORMATION TECHNOLOGIES, INC. (the "Company"), pursuant
to its 1992 Equity Incentive Plan (the "Plan") has this day granted to
you, the optionee named above, an option to purchase shares of the
common stock of the Company ("Common Stock"). This option is not
intended to qualify as an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's
employees (including officers), directors and consultants and is
intended to comply with the provisions of Rule 701 promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act").
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this
option is ____________ (______). Subject to the limitations contained
herein, this option shall be exercisable with respect to each
installment shown below on or after the date of vesting applicable to
such installment, provided that you are a Consultant to the Company on
that vesting date, as follows:
Date of Earliest Exercise Number of Shares
(Vesting Date) (Installment)
As of the Commencement _______ shares (100% of total
Date shares subject to option)
The Commencement Date for purposes of this Option is _______.
2. (a) The exercise price of this option is $_____ per share,
being not less than the fair market value of the Common Stock on the
date of grant of this option.
(b) Payment of the exercise price per share is due in full
in cash (including check) upon exercise of all or any part of each
installment which has become exercisable by you. Notwithstanding the
foregoing, this option may be exercised pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board which
results in the receipt of cash (or check) by the Company prior to the
issuance of Common Stock.
3. (a) Subject to the provisions of this option you may elect
at any time during your service as a Consultant to the Company or an
affiliate thereof, to exercise the option as to any part or all of the
shares subject to this option at any time during the term hereof,
including, without limitation, a time prior to the date of earliest
exercise ("vesting") stated in paragraph 1 hereof; provided, however,
that:
(i) a partial exercise of this option shall
be deemed to cover first vested shares and then the earliest vesting
installment of unvested shares;
(ii) any shares so purchased from
installments which have not vested as of the date of exercise shall be
subject to the purchase option in favor of the Company as described in
the Early Exercise Stock Purchase Agreement attached hereto; and
(iii) you shall enter into an Early
Exercise Stock Purchase Agreement in the form attached hereto with a
vesting schedule that will result in the same vesting as if no early
exercise had occurred.
(b) The election provided in this paragraph 3 to
purchase shares upon the exercise of this option prior to the vesting
dates shall cease upon termination of your service with the Company or
an affiliate thereof and may not be exercised after the date thereof.
4. The minimum number of shares with respect to which this
option may be exercised at any one time is one hundred (100), except
with respect to the final exercise of this option this minimum shall not
apply. In no event may this option be exercised for any number of
shares which would require the issuance of anything other than whole
shares.
5. Notwithstanding anything to the contrary contained herein,
this option may not be exercised unless the shares issuable upon
exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements
of the Act.
6. The term of this option commences on the date hereof and,
unless sooner terminated as set forth below or in the Plan, terminates
on November 21, 2005 (the date ten (10) years from the date this option
is granted). In no event may this option be exercised on or after the
date on which it terminates. This option shall terminate prior to the
expiration of its term as follows: three (3) months after the
termination of your service with the Company or an affiliate of the
Company (as defined in the Plan) for any reason or for no reason
unless:
(a) such termination of service is due to your permanent
and total disability (within the meaning of Section 422(c)(6) of the
Code), in which event the option shall terminate on the earlier of the
termination date set forth above or twelve (12) months following such
termination of service; or
(b) such termination of service is due to your death, in
which event the option shall terminate on the earlier of the termination
date set forth above or twelve (12) months after your death; or
(c) during any part of such three (3) month period the
option is not exercisable solely because of the condition set forth in
paragraph 5 above, in which event the option shall not terminate until
the earlier of the termination date set forth above or until it shall
have been exercisable for an aggregate period of three (3) months after
the termination of service or
(d) exercise of the option within three (3) months after
termination of your service with the Company or with an affiliate would
result in liability under section 16(b) of the Securities Exchange Act
of 1934, in which case the option will terminate on the earlier of (i)
the termination date set forth above, (ii) the tenth (10th) day after
the last date upon which exercise would result in such liability or
(iii) six (6) months and ten (10) days after the termination of your
service with the Company or an affiliate.
However, this option may be exercised following termination of
service only as to that number of shares as to which it was exercisable
on the date of termination of service under the provisions of paragraph
1 of this option.
7. (a) This option may be exercised, to the extent
specified above, by delivering a notice of exercise (in a form
designated by the Company) together with the exercise price to the
Secretary of the Company, or to such other person as the Company may
designate, during regular business hours, together with such additional
documents as the Company may then require pursuant to subparagraph 6(f)
of the Plan.
(b) By exercising this option you agree that:
(i) the Company may require you to enter an
arrangement providing for the payment by you to the Company of any tax
withholding obligation of the Company arising by reason of
(A) the exercise of this option; (B) the lapse of any substantial risk
of forfeiture to which the shares are subject at the time of exercise;
or (C) the disposition of shares acquired upon such exercise;
(ii) you will notify the Company in writing
within fifteen (15) days after the date of any disposition of any of the
shares of the Common Stock issued upon exercise of this option that
occurs within two (2) years after the date of this option grant or
within one (1) year after such shares of Common Stock are transferred
upon exercise of this option;
(iii) the Company (or a representative of the
underwriters) may, in connection with the first underwritten
registration of the offering of any securities of the Company under the
Act, require that you not sell or otherwise transfer or dispose of any
shares of Common Stock or other securities of the Company during such
period (not to exceed one hundred eighty (180) days) following the
effective date (the "Effective Date") of the registration statement of
the Company filed under the Act as may be requested by the Company or
the representative of the underwriters; provided, however, that such
restriction shall apply only if, on the Effective Date, you are an
officer, director, or owner of more than one percent (1%) of the
outstanding securities of the Company. For purposes of this restriction
you will be deemed to own securities which (1) are owned directly or
indirectly by you, including securities held for your benefit by
nominees, custodians, brokers or pledgees; (2) may be acquired by you
within sixty (60) days of the Effective Date; (3) are owned directly or
indirectly, by or for your brothers or sisters (whether by whole or half
blood), spouse, ancestors and lineal descendants; or (4) are owned,
directly or indirectly, by or for a corporation, partnership, estate or
trust of which you are a shareholder, partner or beneficiary, but only
to the extent of your proportionate interest therein as a shareholder,
partner or beneficiary thereof. You further agree that the Company may
impose stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of such period.
(iv) all shares of Common Stock issued on
exercise of this option shall be subject to a purchase option in favor
of the Company as set forth in this subparagraph 7(b)(iv) (the "Market
Value Option"). In the event your service with the Company terminates,
for any reason or no reason, with or without cause, then the Company
shall have the right to purchase all or any part of such stock by
exercising the Market Value Option. The Market Value Option may be
exercised by written notice to you and payment of the purchase price in
cash at any time within 90 days after the date your service terminates.
The exercise price of the Market Value Option shall be the greater of
(1) the price at which the shares were initially purchased from the
Company; or (2) the fair market value of the stock at the time of such
termination as determined by the Board of Directors of the Company
taking into account the book value, present earnings, overall financial
condition and future prospects of the Company. If the stockholder
holding shares subject to the Market Value Option objects to the value
so determined by the Board, then the exercise price of the Market Value
Option shall be the fair market value of the stock being purchased, on
the date of termination, as determined by an independent appraiser to be
designated by the Board of Directors, subject to the approval of the
stockholder, which approval shall not be unreasonably withheld. The
cost of such appraisal shall be paid 50% each by the Company and by such
stockholder. The Market Value Option shall terminate upon the earlier
of (1) _____________; (2) the date securities of the Corporation are
first offered to the public pursuant to a registration statement filed
with, and declared effective by, the U.S. Securities and Exchange
Commission under the Act, or any successor to the Act; or (3) the first
date on which the shares of the same class and series as the shares
subject to such Option are traded on a public market. If any shares
subject to the Market Value Option are transferred, such shares shall
remain subject to the Market Value Option in the hands of the
transferee, and the certificates evidencing such shares may bear a
legend referring to the Market Value Option. Any and all new,
substituted or additional securities or other property to which you may
be entitled as a result of (A) a stock dividend or liquidating dividend
of cash and/or property, stock split, or other change in the character
or amount of any of the outstanding securities of the Company, or (B) a
consolidation, merger or sale of all, or substantially all, of the
assets of the Company by reason of your ownership of the shares issued
on exercise of this option shall be immediately subject to the Market
Value Option. Upon the occurrence of any event specified in clause (B)
above, the Market Value Option may be assigned to any successor of the
Company, and shall apply if you do not become or shall cease for any
reason to be a Consultant to such successor or its affiliates. In that
case, references herein to the "Company" shall be deemed to refer to
such successor.
(v) all shares of Common Stock issued on
exercise of this option shall be subject to any right of first refusal
set forth in any applicable provisions of the Company's Bylaws and;
(vi) you will at the time of exercise
execute an agreement with the Company implementing the provisions of
this Section.
8. This option is not transferable, except by will or by the
laws of descent and distribution, and is exercisable during your life
only by you.
9. This option is not an employment contract and nothing in
this option shall be deemed to create in any way whatsoever any
obligation on your part to continue as a Consultant to the Company, or
of the Company to continue your service with the Company.
10. Any notices provided for in this option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt
or, in the case of notices delivered by the Company to you, five (5)
days after deposit in the United States mail, postage prepaid, addressed
to you at the address specified below or at such other address as you
hereafter designate by written notice to the Company.
11. This option is subject to all the provisions of the Plan, a copy
of which is attached hereto and its provisions are hereby made a part of
this option, including without limitation the provisions of paragraph 7
of the Plan relating to option provisions, and is further subject to all
interpretations, amendments, rules and regulations which may from time
to time be promulgated and adopted pursuant to the Plan. In the event
of any conflict between the provisions of this option and those of the
Plan, the provisions of the Plan shall control.
Dated _______________.
Very truly yours,
ILLUSTRA INFORMATION TECHNOLOGIES, INC.
By
Duly authorized on behalf
of the Board of Directors
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and
liabilities with respect to this option are set forth in the option and
the Plan; and
(b) Acknowledges that as of the date of grant of this option,
it sets forth the entire understanding between the undersigned optionee
and the Company and its affiliates regarding the acquisition of stock in
the Company and supersedes all prior oral and written agreements on that
subject with the exception of the following agreements only:
NONE _________________
(Initial)
OTHER ____________________________
____________________________
____________________________
______________________________
Address:______________________________
______________________________
ATTACHMENTS:
1992 Equity Incentive Plan
Form of Exercise
Exhibit 4.4
EARLY EXERCISE STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made by and between ILLUSTRA INFORMATION
TECHNOLOGIES, INC., a Delaware corporation (the "Corporation"), and
____________________________ ("Purchaser").
WITNESSETH:
WHEREAS, Purchaser holds a _________ stock option to purchase
shares of common stock of the Corporation which Purchaser desires to
exercise; and
WHEREAS, Purchaser wishes to take advantage of the early exercise
provision of his option and therefore to enter into this Agreement;
NOW, THEREFORE, IT IS AGREED between the parties as follows:
1. Purchaser hereby agrees to purchase from the Corporation,
and the Corporation hereby agrees to sell to Purchaser, an aggregate of
_______ shares of the common stock (the "Stock") of the Corporation, for
an exercise price of $_______ per share (total exercise price:
______________ ($______)), payable in cash.
2. (a) All of the shares of the Corporation's Common Stock being
purchased by Purchaser pursuant to this Agreement (hereinafter sometimes
collectively referred to as the "Stock") shall be subject to the option
set forth in this paragraph 2 ("Purchase Option"). In the event
Purchaser shall cease to be employed by the Corporation (including a
parent or subsidiary of the Corporation) at any time prior to the fifth
anniversary of ______________ (the "Commencement Date") for any reason,
or no reason, with or without cause, the Corporation shall have the
right, at any time within 90 days after the date Purchaser ceases to be
so employed, to exercise the Purchase Option, which consists of the
right to purchase from Purchaser or his personal representative, as the
case may be, at the purchase price per share set forth in paragraph 1
above ("the Option Price"), up to but not exceeding the number of shares
of Stock which have not vested under the provisions of subparagraph (b)
below, upon the terms hereinafter set forth.
(b) The Corporation may exercise the Purchase Option as
to the maximum portion of the Stock specified in the following table:
Portion of the
Stock Subject to
If Employment Terminates Purchase Option
From the Commencement Date 100%
to the last day of the 12th month
following the Commencement Date
First day of the 13th month 100% minus 1/60 of the
following the Commencement Date Stock purchased for each month
to the last day of 60th month employed (subject to paragraph
(c) below)
After 60 months None
(c) Notwithstanding the provisions of paragraph (b), in the
event that Purchaser shall cease to be employed by the Corporation for
any reason (including Purchaser's death), or no reason with or without
cause, the Purchase Option may be exercised.
(d) In addition, and without limiting the foregoing
Purchase Option, if at any time during the term of the Purchase Option,
there occurs: (a) a dissolution or liquidation of the Corporation; (b) a
merger or consolidation involving the Corporation in which the
Corporation is not the surviving corporation; (c) a reverse merger in
which the corporation is the surviving corporation but the shares of the
Corporation's common stock outstanding immediately preceding the merger
are converted by virtue of the merger into other property, whether in
the form of other securities, cash or otherwise; or (d) any other
capital reorganization in which more than fifty percent (50%) of the
shares of the Corporation entitled to vote are exchanged, then: (i) if
there will be no successor to the Corporation, the Corporation shall
have the right to exercise its Purchase Option as to all or any portion
of the Stock then subject to the Purchase Option set forth above to the
same extent as if Purchaser's employment by the Corporation had ceased
on the date preceding the date of consummation of said event or
transaction, or (ii) the Purchase Option may be assigned to any
successor of the Corporation, and the Purchase Option shall apply if
Purchaser shall cease for any reason to be an employee of such successor
on the same basis as set forth above. In that case, references herein
to the "Corporation" shall be deemed to refer to such successor.
(e) Nothing in this Agreement shall affect in any manner
whatsoever the right or power of the Corporation, or a parent or
subsidiary of the Corporation, to terminate Purchaser's employment, for
any reason, with or without cause.
3. The Purchase Option shall be exercised by written notice signed
by an officer of the Corporation and delivered or mailed as provided in
paragraph 14. The Option Price shall be payable, at the option of the
Corporation, in cancellation of all or a portion of any outstanding
indebtedness of Purchaser to the Corporation or in cash (by check) or
both.
4. The Corporation may assign its rights under paragraphs 2 and 3
hereof.
5. If, from time to time during the term of the Purchase Option:
(i) there is any stock dividend or liquidating dividend of
cash and/or property, stock split, or other change in the character or
amount of any of the outstanding securities of the Corporation; or
(ii) there is any consolidation, merger or sale of all, or
substantially all, of the assets of the Corporation;
then, in such event, any and all new, substituted or additional
securities or other property to which Purchaser is entitled by reason of
his ownership of the Stock shall be immediately subject to the Purchase
Option and be included in the word "Stock" for all purposes of the
Purchase Option with the same force and effect as the shares of Stock
subject to the Purchase Option under the terms of paragraph 2. While
the total Option Price shall remain the same after each such event, the
Option Price per share of Stock upon exercise of the Purchase Option
shall be appropriately adjusted. Upon the occurrence of any event
specified in subsection (ii) above, the Purchase Option may be assigned
to any successor of the Corporation, and the Purchase Option shall apply
if Purchaser does not become or shall cease for any reason to be
employed by such successor or its affiliates. In that case, references
herein to the "Corporation" shall be deemed to refer to such successor.
6. Purchaser acknowledges that Purchaser is aware that the
Stock to be issued to Purchaser by the Corporation pursuant to this
Agreement has not been registered under the Act, and that the Stock is
deemed to constitute "restricted securities" under Rule 701 and Rule 144
promulgated under the Act. In this connection, Purchaser warrants and
represents to the Corporation that Purchaser is purchasing the Stock for
Purchaser's own account and Purchaser has no present intention of
distributing or selling said stock except as permitted under the Act and
Section 260.141.11 of Title 10 of the California Corporations Code,
attached hereto as Exhibit C. Purchaser further acknowledges that the
exemption from registration under Rule 144 will not be available for at
least three years from the date of sale of the Stock unless at least two
years from the date of sale (i) a public trading market then exists for
the Common Stock of the Corporation, (ii) adequate information
concerning the Corporation is then available to the public, and (iii)
other terms and conditions of Rule 144 are complied with; and that any
sale of the Stock may be made only in limited amounts in accordance with
such terms and conditions and that exemption from registration under
Rule 701 will not be available until ninety days after the Corporation
becomes subject to the reporting requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934 and that after such date the Stock
may be resold by persons other than affiliates in reliance on Rule 144
without compliance with paragraphs (c),(d),(e) and (h) thereof, and by
affiliates without compliance with paragraph (d) thereof.
7. All certificates representing any shares of Stock subject to
the provisions of this Agreement shall have endorsed thereon the
following legends:
(a) The shares represented by this certificate are
subject to an option set forth in an agreement between the Corporation
and the registered holder, or the predecessor in interest, a copy of
which is on file at the principal office of this corporation. Any
transfer or attempted transfer of any shares subject to such option is
void without the prior express written consent of the issuer of these
shares.
(b) The securities represented by this certificate have
not been registered under the Securities Act of 1933 (the "Act"). They
may not be sold or offered for sale or otherwise distributed unless the
securities are registered under the Act or an exemption therefrom is
available.
(c) Any legend required to be placed thereon by the
Corporation's Bylaws.
(d) Any legend required to be placed thereon by
appropriate Blue Sky officials.
8. As security for his faithful performance of the terms of
this Agreement and to insure that the Stock will be available for
delivery upon exercise of the Purchase Option as herein provided,
Purchaser agrees to deliver to and deposit with the Secretary of the
Corporation ("Escrow Agent"), as escrow agent in this transaction, two
Stock Assignments duly endorsed (with date and number of shares blank)
substantially in the form of Exhibit A attached hereto, together with
the certificate or certificates evidencing the Stock; said documents are
to be held by the Escrow Agent and delivered by the Escrow Agent
pursuant to the Joint Escrow Instructions of the Corporation and
Purchaser substantially in the form of Exhibit B attached hereto and
incorporated by this reference, which instructions shall also be
delivered to the Escrow Agent at the closing hereunder.
9. Purchaser shall not sell or transfer any shares of the Stock
then subject to the Purchase Option. Without in any way limiting the
foregoing, Purchaser further agrees that he shall in no event make any
disposition of all or any portion of the Stock which he is purchasing
unless and until:
(i) There is then in effect a registration statement
under the Act covering such proposed disposition and such disposition is
made in accordance with said registration statement; or
(ii) (1) He shall have notified the Corporation of the
proposed disposition and shall have furnished the Corporation with a
detailed statement of the circumstances surrounding the proposed
disposition, (2) he shall have furnished the Corporation with an opinion
of his own counsel to the effect that such disposition will not require
registration of such shares under the Act, and (3) such opinion of his
counsel shall have been concurred in by counsel for the Corporation,
such concurrence not to be unreasonably withheld, and the Corporation
shall have advised him of such concurrence.
10. The Corporation shall not be required (i) to transfer on its
books any shares of Stock of the Corporation which shall have been sold
or transferred in violation of any of the provisions set forth in this
Agreement or (ii) to treat as owner of such shares or to accord the
right to vote as such owner or to pay dividends to any transferee to
whom such shares shall have been transferred in violation of this
Agreement.
11. Subject to the provisions of paragraph 8 above, Purchaser
shall, during the term of this Agreement, exercise all rights and
privileges of a shareholder of the Corporation with respect to the Stock
deposited in said escrow.
12. Purchaser hereby agrees that for a period of not less than
90 days and up to a maximum of 180 days following the effective date of
the first registration statement of the Corporation covering Common
Stock (or other securities) to be sold on its behalf in an underwritten
public offering, he shall not, to the extent requested by the
Corporation and any underwriter, sell or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any Common
Stock of the Corporation held by him at any time during such period
except Common Stock included in such registration; provided, however,
that all officers and directors of the Corporation who hold securities
of the Corporation or options to acquire securities of the Corporation
enter into similar agreements.
In order to enforce the foregoing covenant, the Corporation may
impose stop-transfer instructions with respect to the Common Stock held
by Purchaser (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
13. Purchaser acknowledges receipt of a copy of Section
260.141.11 of Title 10 of the California Administrative Code, attached
hereto as Exhibit C.
14. The parties agree to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the
intent of this Agreement.
15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or
delivery by express courier, or four days after deposit in the United
States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to the other party hereto at its address
hereinafter shown below its signature or at such other address as such
party may designate by ten days' advance written notice to the other
party hereto.
16. This Agreement shall be governed by the laws of the State of
California and interpreted and determined in accordance with the laws of
the State of California.
17. This Agreement shall inure to the benefit of the successors
and assigns of the Corporation and, subject to the restrictions on
transfer herein set forth, shall be binding upon Purchaser, his heirs,
executors, administrators, successors and assigns.
18. This Agreement, together with the Exhibits hereto,
constitutes the entire, final and exclusive statement of the agreement
of the parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
PURCHASER ILLUSTRA INFORMATION TECHNOLOGIES, INC.
_________________________ By___________________________________
Address: Address:
_________________________ 1111 Broadway
_________________________ Suite 2000
_________________________ Oakland, CA 94607
ATTACHMENTS:
Exhibit A Assignment Separate from Certificate
Exhibit B Joint Escrow Instructions
Exhibit 4.5
NONSTATUTORY STOCK OPTION
____________, Optionee:
ILLUSTRA INFORMATION TECHNOLOGIES, INC. (the "Company") has this
day granted to you, the optionee named above, an option to purchase
shares of the common stock of the Company ("Common Stock"). This option
is not intended to qualify as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's
employees (including officers), directors and consultants and is
intended to comply with the provisions of Rule 701 promulgated by the
Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act").
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this
option is ________ (_______). Subject to the limitations contained
herein, this option shall be exercisable with respect to each
installment shown below on or after the date of vesting applicable to
such installment, provided that you are employed by the Company on that
vesting date, as follows:
Date of Earliest Exercise Number of Shares
(Vesting Date) (Installment)
Last day of the 12th month following ______ shares (approx. 20% of total
Commencement Date shares subject to option)
End of 13th through 59th months ______ shares (approx. 1/60 of total
following Commencement Date shares subject to option)
End of 60th month following ______ shares (balance of shares
Commencement Date subject to option)
The Commencement Date for purposes of this option is _______.
2. (a) The exercise price of this option is $_____ per share,
being not less than the fair market value of the Common Stock on the
date of grant of this option.
(b) Payment of the exercise price per share is due in full
in cash (including check) upon exercise of all or any part of each
installment which has become exercisable by you. Notwithstanding the
foregoing, this option may be exercised pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board which
results in the receipt of cash (or check) by the Company prior to the
issuance of Common Stock.
3. (a) Subject to the provisions of this option you may elect
at any time during your employment with the Company or an affiliate
thereof, to exercise the option as to any part or all of the shares
subject to this option at any time during the term hereof, including,
without limitation, a time prior to the date of earliest exercise
("vesting") stated in paragraph 1 hereof; provided, however, that:
(i) a partial exercise of this option shall be
deemed to cover first vested shares and then the earliest vesting
installment of unvested shares;
(ii) any shares so purchased from installments which
have not vested as of the date of exercise shall be subject to the
purchase option in favor of the Company as described in the Early
Exercise Stock Purchase Agreement attached hereto; and
(iii) you shall enter into an Early Exercise Stock
Purchase Agreement in the form attached hereto with a vesting schedule
that will result in the same vesting as if no early exercise had
occurred.
(b) The election provided in this paragraph 3 to purchase
shares upon the exercise of this option prior to the vesting dates shall
cease upon termination of your employment with the Company or an
affiliate thereof and may not be exercised after the date thereof.
4. The minimum number of shares with respect to which this option
may be exercised at any one time is one hundred (100), except (a) as to
an installment subject to exercise, as set forth in paragraph 1, which
amounts to fewer than one hundred (100) shares, in which case, as to the
exercise of that installment, the number of shares in such installment
shall be the minimum number of shares, and (b) with respect to the final
exercise of this option this minimum shall not apply. In no event may
this option be exercised for any number of shares which would require
the issuance of anything other than whole shares.
5. Notwithstanding anything to the contrary contained herein,
this option may not be exercised unless the shares issuable upon
exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements
of the Act. The Company may require Optionee (or other person eligible
to exercise this option pursuant to the terms herein), as a condition of
exercising any such option, (i) to give written assurances satisfactory
to the Company as to the Optionee'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 is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Option; and (ii)
to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's
own account and not with any present intention of selling or otherwise
distributing the stock. These requirements, and any assurances given
pursuant to such requirements, shall be inoperative if (A) the issuance
of the shares upon the exercise of the option has been registered under
a then currently effective registration statement under the Act, or (B)
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.
6. The term of this option commences on the date hereof and,
unless sooner terminated as set forth below, terminates on __________.
In no event may this option be exercised on or after the date on which
it terminates. This option shall terminate prior to the expiration of
its term as follows:
(a) Termination of Relationship as an Employee. In the
event Optionee's continuous status as an Employee terminates (other than
upon the Optionee's death or disability), the Optionee may exercise his
option within three (3) months from such date of termination, but only
to the extent that the Optionee was entitled to exercise it at the date
of termination. If, after termination, the Optionee does not exercise
his option within the time specified herein, the option shall terminate.
(b) Disability of Optionee. In the event Optionee's
continuous status as an Employee terminates as a result of Optionee's
Disability, the Optionee may exercise his option, but only within twelve
(12) months from the date of such termination, and only to the extent
that the Optionee was entitled to exercise it at the date of such
termination. If, after termination, the Optionee does not exercise his
option within the time specified herein, the option shall terminate.
(c) Death of Optionee. In the event of the death of
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 of the term of such option), 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. If, after death, the
Optionee's estate or a person who acquired the right to exercise the
option by bequest or inheritance does not exercise the option within the
time specified herein, the option shall terminate.
(d) Definitions.
(i) "Affiliate" means any parent corporation or
subsidiary corporation, whether now or hereafter existing, as those
terms are defined in Sections 424(e) and (f) respectively, of the
Internal Revenue Code of 1986, as amended.
(ii) "Director" means a member of the Board of Directors
of the Company.
(iii) "Employee" means any person, including Officers and
Directors, 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.
(iv) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(v) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and the
rules and regulations promulgated thereunder.
7. (a) This option may be exercised, to the extent specified
above, by delivering a notice of exercise (in a form designated by the
Company) together with the exercise price to the Secretary of the
Company, or to such other person as the Company may designate, during
regular business hours, together with such additional documents as the
Company may then reasonably require.
(b) By exercising this option you agree that:
(i) the Company may require you to enter an arrangement
providing for the payment by you to the Company of any tax withholding
obligation of the Company arising by reason of (A) the exercise of this
option; (B) the lapse of any substantial risk of forfeiture to which the
shares are subject at the time of exercise; or (C) the disposition of
shares acquired upon such exercise;
(ii) the Company (or a representative of the
underwriters) may, in connection with the first underwritten
registration of the offering of any securities of the Company under the
Act, require that you not sell or otherwise transfer or dispose of any
shares of Common Stock or other securities of the Company during such
period (not to exceed one hundred eighty (180) days) following the
effective date (the "Effective Date") of the registration statement of
the Company filed under the Act as may be requested by the Company or
the representative of the underwriters; provided, however, that such
restriction shall apply only if, on the Effective Date, you are an
officer, director, or owner of more than one percent (1%) of the
outstanding securities of the Company. For purposes of this restriction
you will be deemed to own securities which (1) are owned directly or
indirectly by you, including securities held for your benefit by
nominees, custodians, brokers or pledgees; (2) may be acquired by you
within sixty (60) days of the Effective Date; (3) are owned directly or
indirectly, by or for your brothers or sisters (whether by whole or half
blood), spouse, ancestors and lineal descendants; or (4) are owned,
directly or indirectly, by or for a corporation, partnership, estate or
trust of which you are a shareholder, partner or beneficiary, but only
to the extent of your proportionate interest therein as a shareholder,
partner or beneficiary thereof. You further agree that the Company may
impose stop-transfer instructions with respect to securities subject to
the foregoing restrictions until the end of such period.
(iii) all shares of Common Stock issued on exercise of
this option shall be subject to a purchase option in favor of the
Company as set forth in this subparagraph 7(b)(iv) (the "Market Value
Option"). In the event your employment with the Company terminates, for
any reason or no reason, with or without cause, then the Company shall
have the right to purchase all or any part of such stock by exercising
the Market Value Option. The Market Value Option may be exercised by
written notice to you and payment of the purchase price in cash at any
time within 90 days after your employment terminates. The exercise
price of the Market Value Option shall be the greater of (1) the price
at which the shares were initially purchased from the Company; or (2)
the fair market value of the stock at the time of such termination as
determined by the Board of Directors of the Company taking into account
the book value, present earnings, overall financial condition and future
prospects of the Company. If the stockholder holding shares subject to
the Market Value Option objects to the value so determined by the Board,
then the exercise price of the Market Value Option shall be the fair
market value of the stock being purchased, on the date of termination,
as determined by an independent appraiser to be designated by the Board
of Directors, subject to the approval of the stockholder, which approval
shall not be unreasonably withheld. The cost of such appraisal shall be
paid 50% each by the Company and by such stockholder. The Market Value
Option shall terminate upon the earlier of (1) ___________; (2) the date
securities of the Corporation are first offered to the public pursuant
to a registration statement filed with, and declared effective by, the
U.S. Securities and Exchange Commission under the Act, or any successor
to the Act; or (3) the first date on which the shares of the same class
and series as the shares subject to such Option are traded on a public
market. If any shares subject to the Market Value Option are
transferred, such shares shall remain subject to the Market Value Option
in the hands of the transferee, and the certificates evidencing such
shares may bear a legend referring to the Market Value Option. Any and
all new, substituted or additional securities or other property to which
you may be entitled as a result of (A) a stock dividend or liquidating
dividend of cash and/or property, stock split, or other change in the
character or amount of any of the outstanding securities of the Company,
or (B) a consolidation, merger or sale of all, or substantially all, of
the assets of the Company by reason of your ownership of the shares
issued on exercise of this option shall be immediately subject to the
Market Value Option. Upon the occurrence of any event specified in
clause (B) above, the Market Value Option may be assigned to any
successor of the Company, and shall apply if you do not become or shall
cease for any reason to be employed by such successor or its affiliates.
In that case, references herein to the "Company" shall be deemed to
refer to such successor.
(iv) all shares of Common Stock issued on exercise of
this option shall be subject to any right of first refusal set forth in
any applicable provisions of the Company's Bylaws and;
(v) you will at the time of exercise execute an
agreement with the Company implementing the provisions of this Section
7.
8. During the term of this Option, the Company shall keep
available at all times the number of shares of stock required to satisfy
the exercise of such option.
9. Proceeds from the sale of stock pursuant to the exercise of
this Option shall constitute general funds of the Company.
10. Optionee shall not be deemed to be the holder of, or to have
any of the rights of a holder with respect to, any shares subject to
this option unless and until such person has satisfied all requirements
for exercise of this option pursuant to its terms. Throughout the term
of this option, the Company shall deliver to Optionee, not later than
one hundred twenty (120) days after the close of each of the Company's
fiscal years during the option term, (i) a balance sheet and income
statement for the preceding year; and (ii) any other information
regarding the Company as comprises the annual report to the stockholders
of the Company provided for in the bylaws of the Company.
11. (a) If any change is made in the stock subject to this
option (through merger, consolidation, reorganization, recapitalization,
stock dividend, dividend in property other than cash, stock split,
liquidating dividend, combination of shares, exchange of shares, change
in corporate structure or otherwise), this option will be appropriately
adjusted in the class(es), number of shares and price per share of stock
subject to the option.
(b) In the event of: (1) a merger or consolidation in which
the Company is not the surviving corporation; or (2) 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 shall assume this option
or shall substitute a similar option (if this option is still
outstanding), or (ii) this option shall continue in full force and
effect. In the event any surviving corporation refuses to assume or
continue this option, or to substitute a similar option for this option
(if still outstanding), then this option shall be terminated if not
exercised prior to such event. In the event of a dissolution or
liquidation of the Company, this option (if still outstanding) shall
terminate if not exercised prior to such event.
12. This option is not transferable, except by will or by the
laws of descent and distribution, and is exercisable during your life
only by you.
13. This option is not an employment contract and nothing in this
option shall be deemed to create in any way whatsoever any obligation on
your part to continue in the employ of the Company, or of the Company to
continue your employment with the Company.
14. Any notices provided for in this option shall be given in
writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by the Company to you, five (5) days after
deposit in the United States mail, postage prepaid, addressed to you at
the address specified below or at such other address as you hereafter
designate by written notice to the Company.
Dated _____________.
Very truly yours,
ILLUSTRA INFORMATION TECHNOLOGIES, INC.
By
Duly authorized on behalf of the
Board of Directors
The undersigned:
(a) Acknowledges receipt of the foregoing option and the
attachments referenced therein and understands that all rights and
liabilities with respect to this option are set forth in the option; and
(b) Acknowledges that as of the date of grant of this option, it
sets forth the entire understanding between the undersigned optionee and
the Company and its affiliates regarding the acquisition of stock in the
Company and supersedes all prior oral and written agreements on that
subject with the exception of the following agreements only:
NONE _______
(Initial)
OTHER _______________________________________
_______________________________________
_______________________________________
___________________________________
Address:___________________________
___________________________
ATTACHMENTS:
Form of Exercise
Early Exercise Stock Purchase Agreement
Exhibit 5.1
March 1, 1996
Informix Corporation
4100 Bohannon Drive
Menlo Park, California 94025
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about March 1,
1996 (the "Registration Statement") in connection with the registration
under the Securities Act of 1933, as amended, for an aggregate of
2,295,716 shares of your Common Stock under the Illustra Information
Technologies, Inc. 1992 Equity Incentive Plan and Other Options. Such
shares of Common Stock are referred to herein as the "Shares," and such
plans are referred to herein as the "Plans." As your counsel in
connection with this transaction, we have examined the proceedings taken
and are familiar with the proceedings proposed to be taken by you in
connection with the issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that, when issued and sold in the manner described in
the Plans and pursuant to the agreements which accompany each grant
under the Plans, the Shares will be legally and validly issued, fully-
paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing
in the Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
Exhibit 23.1
Consent of Independent Auditors
We consent to incorporation by reference in the registration statement
on Form S-8 of Informix Corporation of our report dated August 9, 1995,
relating to the consolidated balance sheets of Illustra Information
Technologies, Inc. and subsidiary as of June 30, 1995 and 1994, and the
related consolidated statements of operations, stockholders' equity, and
cash flows for the years then ended and for the period from July 31,
1992 (inception) to June 30, 1993, which report appears in the
registration statement (No. 333-143) on Form S-4 of Informix
Corporation.
KPMG PEAT MARWICK LLP
/s/ KPMG Peat Marwick LLP
San Jose, California
March 1, 1996
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Illustra Information
Technologies, Inc. 1992 Equity Incentive Plan and Other Options of our
report dated February 6, 1995, with respect to the consolidated
financial statements and schedule of Informix Corporation included in
its Annual Report (Form 10-K) for the year ended December 31, 1994,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
February 29, 1996
