<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 31, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PLATINUM technology, inc.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3509662
(State or other jurisdiction of (IRS Employer Identification
of incorporation or organization) Number)
1815 SOUTH MEYERS ROAD, OAKBROOK TERRACE, ILLINOIS 60181, (630) 620-5000
(Address of Principal Executive Offices including Zip Code)
VREAM, INC. 1995 STOCK OPTION PLAN
(Full title of plan)
ANDREW J. FILIPOWSKI
1815 SOUTH MEYERS ROAD, OAKBROOK TERRACE, ILLINOIS 60181, (630) 620-5000
(Name, address and telephone number of agent for service)
COPIES TO:
MATTHEW S. BROWN, ESQ.
MARK D. WOOD, ESQ.
KATTEN MUCHIN & ZAVIS
525 W. MONROE, SUITE 1600
CHICAGO, IL 60661-3693
FAX NUMBER: (312) 902-1061
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
Title of securities to be registered registered(1) per share price registration fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value (including
preferred stock purchase rights)(2) 70,257 shares(2) $0.28 (3) $19,671.96 (3) $6.00
========================================================================================================================
</TABLE>
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(1) Includes an indeterminate number of shares of PLATINUM technology, inc.
Common Stock that may be issuable by reason of stock splits, stock dividends
or similar transactions.
(2) Represents shares issuable upon exercise of outstanding options under the
VREAM, Inc. 1995 Stock Option Plan (the "Plan").
(3) The amounts are based upon the weighted average exercise price of the 70,257
shares subject to outstanding options under the Plan and are used solely for
purposes of calculating the registration fee pursuant to Rule 457 under the
Securities Act of 1933.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of Form S-8 is currently included in
the prospectus for the VREAM, Inc. 1995 Stock Option Plan (the "Plan") and is
not being filed with or included in this Form S-8 in accordance with the rules
and regulations of the Securities and Exchange Commission (the "Commission").
The Plan was assumed by PLATINUM technology, inc. (the "Company") pursuant
to the Agreement and Plan of Reorganization, dated December 3, 1996, by and
among the Company, VREAM ACQUISITION CORP., and VREAM, Inc. and certain of the
shareholders of VREAM, Inc. Options previously issued under the Plan converted
into options to purchase the Company's Common Stock, $.001 par value per share.
No additional options will be issued under the Plan.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
are incorporated in this Registration Statement by reference:
1. The final prospectus, dated November 18, 1996, included in the
Company's Registration Statement on Form S-3, Registration No. 333-
15421, and filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended;
2. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
3. The Company's Quarterly Reports on Form 10-Q for the quarters ending
March 31, 1996, June 30, 1996 and September 30, 1996;
4. The Company's Current Report on Form 8-K, as amended, dated February
8, 1996;
5. The Company's Report on Form 10-C dated March 18, 1996;
6. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed March 7, 1991 pursuant to
Section 12 of the Exchange Act and all amendments thereto and reports
filed for the purpose of updating such description; and
7. The description of the preferred stock purchase rights contained in
the Company's Registration Statement on Form 8-A filed December 26,
1995 pursuant to Section 12 of the Exchange Act and all amendments
thereto and reports filed for the purpose of updating such
description.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, subsequent to the date hereof and prior
to the filing of a post-effective amendment indicating that all securities
offered pursuant to this Registration Statement have been sold or deregistering
all such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ten of the Company's Restated Certificate of Incorporation provides
that the Company shall indemnify its directors to the full extent permitted by
the Delaware General Corporation Law and may indemnify its officers to such
extent, except that the Company shall not be obligated to indemnify any such
person (i) with respect to proceedings, claims or actions initiated or brought
voluntarily by any such person and not by way of defense, or (ii) for any
amounts paid in settlement of an action
II-1
<PAGE>
indemnified against by the Company without the prior written consent of the
Company. With the approval of its stockholders, the Company has entered into
indemnity agreements with each of its directors and certain of its officers.
These agreements may require the Company, among other things, to indemnify such
officers and directors against certain liabilities that may arise by reason of
their status or service as directors or officers, to advance expenses to them as
they are incurred, provided that they undertake to repay the amount advanced if
it is ultimately determined by a court that they are not entitled to
indemnification, and to obtain directors' and officers' liability insurance if
available on reasonable terms.
In addition, Article Nine of the Company's Certificate of Incorporation
provides that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derives
an improper personal benefit.
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware which provides for indemnification of directors and officers
in certain circumstances.
The Company has purchased an insurance policy under which it is entitled to
be reimbursed for certain indemnity payments it is required or permitted to make
to its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 VREAM, Inc. 1995 Stock Option Plan (the "Plan").
4.2 Form of Stock Option Agreement for the Plan.
4.3 Conformed copy of Restated Certificate of Incorporation of the
Company, as amended, incorporated by reference to Exhibit 3.1(d) to
the Company's Registration Statement on Form S-1, Registration No.
333-07783.
4.4 Bylaws of the Company, incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1, Registration No.
33-39233 (the "IPO S-1 Registration Statement").
4.5 Specimen stock certificate representing Common Stock, incorporated by
reference to Exhibit 4.1 to the IPO S-1 Registration Statement.
4.6 Rights Agreement dated as of December 21, 1995, between the Company
and Harris Trust and Savings Bank, incorporated by reference to
Exhibit 1 to the Company's Registration Statement on Form 8-A, filed
December 26, 1995.
5 Opinion of counsel as to legality of shares of Common Stock being
offered (including consent).
II-2
<PAGE>
15 Acknowledgment of Certified Public Accountants Regarding Independent
Auditors' Review Reports.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's
financial statements.
23.2 Consent of Deloitte & Touche LLP with respect to the financial
statements of Trinzic Corporation.
23.3 Consent of Ernst & Young LLP with respect to the financial
statements of Altai, Inc.
23.4 Consent of Coopers & Lybrand L.L.P. with respect to the financial
statements of Answer Systems, Inc.
23.5 Consent of Arthur Andersen LLP with respect to the financial
statements of Locus Computing Corporation.
23.6 Consent of Arthur Andersen LLP with respect to the financial
statements of Softool Corporation.
23.7 Consent of KPMG Peat Marwick LLP with respect to the financial
statements of Prodea Software Corporation.
23.8 Consent of Katten Muchin & Zavis (included in their opinion filed as
Exhibit 5 herein).
24 Power of Attorney (included on the signature page of this Registration
Statement).
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) 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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
II-3
<PAGE>
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) 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.
2. The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company and affiliated companies pursuant to the provisions
described in Item 6 above, or otherwise, the Company has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Oakbrook Terrace, State of Illinois, on this 30th day
of January, 1997.
PLATINUM technology, inc.
By: /s/ ANDREW J. FILIPOWSKI
-------------------------------------
Andrew J. Filipowski
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Andrew J. Filipowski, Michael P. Cullinane, Michael C. Wyatt and Matthew S.
Brown, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution, to sign on his behalf, individually and in each
capacity stated below, all amendments and post-effective amendments to this
Registration Statement on Form S-8 (including registration statements filed
pursuant to Rule 462(b) under the Securities Act of 1933, and all amendments
thereto) and to file the same, with all exhibits thereto and any other documents
in connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as each might or could do in person, hereby ratifying and confirming
each act that said attorneys-in-fact and agents may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 30, 1997.
<TABLE>
<CAPTION>
Signature Title
- ------------------------- ----------------------------------------------------
<S> <C>
/s/ ANDREW J. FILIPOWSKI President, Chief Executive Officer (Principal
- ------------------------- Executive Officer) and a Director
Andrew J. Filipowski
/s/ MICHAEL P. CULLINANE Executive Vice President, Chief Financial Officer
- ------------------------- (Principal Financial and Accounting Officer) and a
Michael P. Cullinane Director
/s/ PAUL L. HUMENANSKY Executive Vice President, Chief Operations Officer
- ------------------------- and a Director
Paul L. Humenansky
/s/ JAMES E. COWIE Director
- -------------------------
James E. Cowie
/s/ STEVEN D. DEVICK Director
- -------------------------
Steven D. Devick
/s/ GIAN FULGONI Director
- -------------------------
Gian Fulgoni
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Sequential
Exhibits Description Page No.
-------- -------------------------------------------------------------------------------------- ----------
<C> <S> <C>
4.1 VREAM, Inc. Stock Option Plan (the "Plan").
4.2 Form of Stock Option Agreement for the Plan.
5 Opinion of counsel as to legality of shares of Common Stock being offered (including
consent).
15 Acknowledgment of Certified Public Accountants Regarding Independent Auditors'
Review Reports.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's financial
statements.
23.2 Consent of Deloitte & Touche LLP with respect to the financial statements of Trinzic
Corporation.
23.3 Consent of Ernst & Young LLP with respect to the financial statements of Altai, Inc.
23.4 Consent of Coopers & Lybrand L.L.P. with respect to the financial statements of
Answer Systems, Inc.
23.5 Consent of Arthur Andersen LLP with respect to the financial statements of Locus
Computing Corporation.
23.6 Consent of Arthur Andersen LLP with respect to the financial statements of Softool
Corporation.
23.7 Consent of KPMG Peat Marwick LLP with respect to the financial statements of Prodea
Software Corporation.
23.8 Consent of Katten Muchin & Zavis (included in their opinion filed as Exhibit 5 herein).
24 Power of Attorney (included on the signature page of this Registration Statement).
=================================================================================================================
</TABLE>
<PAGE>
VREAM, INC.
1995 STOCK OPTION PLAN
Adopted by the Board of Directors on November 7, 1995
1. Purpose.
The purpose of this 1995 Stock Option Plan (this "Plan") of VREAM, Inc., an
Illinois corporation (the "Company"), is to provide a means whereby selected
employees, officers and directors of, and consultants to, the Company may be
granted options to purchase shares of Common Stock of the Company, without par
value (the "Common Stock"), to attract or retain the services of such employees,
officers, directors and consultants and to provide added incentive to them by
encouraging stock ownership in the Company. Except where the context otherwise
requires, the term "Company" shall include the parent, if any, and all present
and future subsidiaries of the Company as defined in Sections 424(e) and 424(f)
of the Internal Revenue Code of 1986, as amended or replaced from time to time
(the "Code").
2. Type of Options and Administration.
(a) Types of Options. Options granted pursuant to this Plan shall be
authorized by action of the Board of Directors of the Company (the "Board") (or
a committee designated by the Board as hereinafter provided) and may be either
incentive stock options meeting the requirements of Section 422 of the Code
("Incentive Stock Options") or non-statutory options which are not intended to
meet the requirements of Section 422 of the Code. Those provisions of this Plan
which make express reference to Section 422 of the Code shall apply only to
Incentive Stock Options.
(b) Administration. This Plan will be administered by the Board, whose
construction and interpretation of the terms and provisions of this Plan shall
be final and conclusive. Subject to the terms and conditions expressly set
forth in this Plan, the Board will have the authority, in its sole discretion,
to determine all matters relating to the options to be granted under this Plan,
including, but not limited to, the selection of the individuals to be granted
options, the number of shares of Common Stock to be subject to each option, the
exercise price, the conditions with respect to the vesting or exercisability of
such option and all other terms and conditions of the options, to adopt and
approve the stock option agreements evidencing such options consistent with the
terms of the grant of such options and this Plan, which stock option agreements
need not be identical (even when made simultaneously) and to issue shares of
Common Stock upon exercise of such options as provided in this Plan and the
stock option agreements. In addition, the Board shall have authority, subject
to the express provisions of this Plan, to construe the respective stock option
agreements and this Plan, to prescribe, amend and rescind rules and regulations
relating to this Plan and to make all other determinations in the judgment of
the Board necessary or desirable for the administration of this Plan. The Board
<PAGE>
may correct any defect or supply any omission or reconcile any inconsistency in
this Plan or in any stock option agreement in the manner and to the extent it
shall deem expedient to carry this Plan into effect and it shall be the sole and
final judge of such expediency. The Board may, to the full extent permitted by
or consistent with applicable laws or regulations, delegate any or all of its
powers under this Plan to a committee (the "Committee") appointed by the Board,
and if the Committee is so appointed all references to the Board in this Plan
shall mean and relate to such Committee.
From and after the registration of the Common Stock under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), this Plan will
be administered either (i) by the Board, of which all members shall be
"disinterested persons" (as hereinafter defined), or (ii) by a Committee
consisting of two or more directors having full authority to act in the matter,
each of whom shall be a "disinterested person." For the purposes of this Plan,
a director shall be deemed to be a "disinterested person" only if such person
qualifies as a "disinterested person" within the meaning of Rule 16b-3
promulgated under the Exchange Act, or any successor rule ("Rule 16b-3"), as
such term is interpreted from time to time.
(c) Applicability of Rule 16b-3. Those provisions of this Plan which make
express reference to Rule 16b-3 shall apply only to persons that are required to
file reports under Section 16(a) of the Exchange Act (a "Reporting Person").
Furthermore, until and after such time as the Common Stock is registered under
Section 12 of the Exchange Act, references herein to Rule 16b-3 shall be of no
force or effect.
3. Eligibility.
Options may be granted to persons specified by the Board, in its sole
discretion, who are, at the time of grant, employees, officers or directors of,
or consultants to, the Company; provided, however, that Incentive Stock Options
may be granted only to employees of the Company. A person who has been granted
an option may, if he or she is otherwise eligible, be granted additional options
if the Board shall so determine.
4. Stock Subject to Plan.
The stock subject to this Plan shall be the Common Stock presently
authorized but unissued or subsequently acquired by the Company. Subject to
adjustment as provided in Section 15, the maximum number of shares of Common
Stock which may be issued and sold under this Plan is 1,600,000 shares. If an
option granted under this Plan shall expire or terminate for any reason without
having been exercised in full, the unpurchased shares subject to such option
shall again be available for subsequent option grants under this Plan.
5. Forms of Stock Option Agreements.
Options granted under this Plan shall be evidenced by written stock option
agreements in such form or forms not inconsistent with this Plan as may be
approved by the Board from time to time, which stock option agreements shall
contain such terms, conditions, limitations and restrictions as the Board shall
deem advisable and which are not inconsistent with this Plan. Such stock option
agreements may differ among recipients even when made simultaneously. The
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<PAGE>
provisions of Sections 13, 14, 15, 16, 17, 18, 19 and 20 of this Plan shall be
included in such stock option agreements or incorporated therein by reference.
The grant of an option pursuant to this Plan shall be conditional on the
execution of the applicable stock option agreement by the recipient of such
grant.
6. Price.
(a) General. The purchase price per share of Common Stock deliverable
upon the exercise of an option shall be determined by the Board and set forth in
the applicable stock option agreement; provided, however, that the purchase
price per share of Common Stock shall not be less than (i) in the case of an
Incentive Stock Option (other than Incentive Stock Options described in Section
11(b)), 100% of the fair market value of a share of Common Stock, as determined
by the Board, at the time of grant of such option (without regard to any
restriction other than a restriction which, by its terms, will never lapse), and
(ii) in the case of Incentive Stock Options described in Section 11(b), 110% of
such fair market value, as so determined.
(b) Payment of Purchase Price. Options granted under this Plan may
provide for the payment of the exercise price by delivery of cash or a certified
check to the order of the Company in an amount equal to the aggregate exercise
price of such options, or, to the extent provided in the applicable stock option
agreement, (i) by delivery to the Company of shares of Common Stock already
owned by the optionee having a fair market value equal in amount to the
aggregate exercise price of the options being exercised, (ii) by any other means
(including, but not limited to, (A) by delivery of a promissory note of the
optionee payable on such terms as are specified by the Board or (B) by
cancellation of outstanding options of the optionee or withholding shares of
Common Stock issuable to the optionee upon the exercise of such option upon
terms set by the Board, which the Board determines are consistent with the
purpose of this Plan and with applicable laws and regulations (including, but
not limited to, the provisions of Rule 16b-3)) or (iii) by any combination of
such methods of payment. The fair market value of any shares of Common Stock or
other non-cash consideration which may be delivered upon exercise of an option
shall be determined by the Board.
7. Option Period.
Each option and all rights with respect thereto shall expire on such date
as shall be set forth in the applicable stock option agreement, except that (a)
in the case of an Incentive Stock Option (other than an Incentive Stock Option
described in Section 11(b)), such date shall not be later than ten years after
the date on which such option is granted, (b) in the case of an Incentive Stock
Option described in Section 11(b), such date shall not be later than five years
after the date on which such option is granted, and (c) in all cases, options
may be subject to earlier termination as provided in this Plan or in the
applicable stock option agreement.
8. Exercise of Options.
Each option granted under this Plan shall become exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the stock option agreement evidencing such option, subject to the
provisions of this Plan.
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<PAGE>
9. Nontransferability of Options.
Options granted under this Plan and the rights and privileges conferred
thereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise), other than (a) by will, or (b) by
the applicable laws of descent and distribution, and shall not be subject to
execution, attachment or similar process. Any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of any such option or of any right or
privilege conferred thereby, contrary to this Plan, or the sale or levy or
similar process upon the rights and privileges conferred thereby, shall be void.
10. Effect of Termination of Employment or Other Relationship.
Except as provided in Section 11 with respect to Incentive Stock Options,
and subject to the provisions of this Plan, the Board shall determine the period
of time, if any, during which an optionee may exercise an option following (i)
the termination of the optionee's employment or other relationship with the
Company or (ii) the death or disability of the optionee. Such periods shall be
set forth in the stock option agreement evidencing such option.
11. Incentive Stock Options.
Options granted under this Plan which are intended to be Incentive Stock
Options shall be subject to the following additional terms and conditions:
(a) Express Designation. All Incentive Stock Options granted under this
Plan shall, at the time of grant, be specifically designated as such in the
stock option agreement covering such Incentive Stock Options.
(b) 10% Stockholder. If any employee to whom an Incentive Stock Option is
to be granted under this Plan is, at the time of the grant of such option, the
owner of stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company (after taking into account the attribution
of stock ownership rules of Section 424(d) of the Code), then the following
special provisions shall be applicable to the Incentive Stock Option granted to
such individual:
(i) the purchase price per share of the Common Stock subject to such
Incentive Stock Option shall not be less than 110% of the fair market value
of a share of Common Stock at the time of grant; and
(ii) the option exercise period shall not exceed five years from the
date of grant.
(c) Dollar Limitation. For so long as the Code shall so provide, options
granted to any employee under this Plan (and any other incentive stock option
plans of the Company) which are otherwise designated as Incentive Stock Options
shall not constitute Incentive Stock Options to the extent that such options, in
the aggregate, become exercisable for the first time in any calendar year for
shares of Common Stock with an aggregate fair market value (determined as of the
respective date or dates of grant) in excess of $100,000.
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<PAGE>
(d) Termination of Employment, Death or Disability. No Incentive Stock
Option may be exercised unless, at the time of such exercise, the optionee is,
and has been continuously since the date of grant of his or her option, in the
employment of the Company, except that:
(i) an Incentive Stock Option may be exercised within the period of
three months after the date the optionee ceases to be an employee of the
Company (or within such lesser period as may be specified in the applicable
option agreement), provided, however, that the stock option agreement with
respect to such option may designate a longer exercise period and if such
option is exercised after such three-month period the exercise of such
option shall be treated as the exercise of a non-statutory option under
this Plan;
(ii) if the optionee dies while in the employ of the Company, or
within three months after the optionee ceases to be such an employee, the
Incentive Stock Option may be exercised by the person to whom it is
transferred by will or the laws of descent and distribution within the
period of one year after the date of death (or within such lesser period as
may be specified in the applicable stock option agreement); and
(iii) if the optionee becomes disabled (within the meaning of Section
22(e)(3) of the Code or any successor provision thereto) while in the
employ of the Company, the Incentive Stock Option may be exercised within
the period of one year after the date the optionee ceases to be such an
employee because of such disability (or within such lesser period as may be
specified in the applicable stock option agreement).
For purposes of this Plan and any option granted hereunder, "employment" shall
be defined in accordance with the provisions of Section 1.421-7(h) of the Income
Tax Regulations (or any successor regulations). Notwithstanding the foregoing
provisions, no Incentive Stock Option may be exercised after its expiration
date.
12. Additional Provisions.
---------------------
(a) Additional Option Provisions. The Board may, in its sole discretion,
include additional provisions in stock option agreements covering options
granted under this Plan and shares of Common Stock issued upon exercise of such
options, including, but not limited to, (i) restrictions on transfer and
disposition, (ii) the grant of registration rights, (iii) repurchase rights,
(iv) commitments to pay cash bonuses, to make, arrange for or guaranty loans or
to transfer other property to optionees upon exercise of options, (v)
restrictions on voting, and (vi) any additional conditions to the issuance of
shares of Common Stock upon the exercise of options, including, without
limitation, the execution of one or more shareholders agreements; provided,
however, that such additional provisions shall not be inconsistent with any
other term or condition of this Plan and such additional provisions shall not
cause any Incentive Stock Option granted under this Plan to fail to qualify as
an Incentive Stock Option within the meaning of Section 422 of the Code.
(b) Acceleration, Extension and Other Matters. The Board of Directors may,
in its sole discretion, (i) accelerate the date or dates on which all or any
particular option or options granted under the Plan may be exercised or (ii)
extend the dates during which all or any
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<PAGE>
particular option or options granted under the Plan may be exercised; provided,
however, that no such extension shall be permitted if it would cause the Plan to
fail to comply with (A) Section 422 of the Code and (B) Rule 16b-3.
13. General Restrictions.
--------------------
(a) Investment Representations. The Board may require any person to whom
an option is granted, as a condition of exercising such option, to give written
assurances in form and substance satisfactory to the Board in its sole
discretion to the effect that such person is acquiring the Common Stock subject
to the option for his or her own account for investment and not with any present
intention of selling or otherwise distributing the same, and to such other
effects as the Board deems necessary or appropriate in its sole discretion in
order to comply with federal and applicable state securities laws, or with
covenants or representations made by the Company in connection with any public
offering of its Common Stock.
(b) Compliance With Securities Laws. Each option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
(i) the listing, registration or qualification of the shares subject to such
option upon any securities exchange or under any federal, state or foreign law,
(ii) the consent or approval of any governmental or regulatory body, or (iii)
the disclosure of non-public information or the satisfaction of any other
condition is necessary as a condition of, or in connection with, the issuance or
purchase of shares thereunder, such option may not be exercised, in whole or in
part, unless such listing, registration, qualification, consent or approval,
disclosure or satisfaction of such condition, shall have been effected or
obtained on conditions acceptable to the Board in its sole discretion. Nothing
contained herein shall be deemed to require the Company to apply for or to
obtain such listing, registration, qualification, or approval, to make such
disclosure or to satisfy such condition
14. Rights as a Stockholder.
-----------------------
The holder of an option shall have no rights as a stockholder with respect
to any shares covered by the option (including, but not limited to, any rights
to receive dividends or distributions with respect to such shares) until the
date of issue of a stock certificate to him or her for such shares. No
adjustment shall be made for dividends, distributions or other rights for which
the record date is prior to the date such stock certificate is issued.
15. Adjustment Provisions for Recapitalizations and Related Transactions.
--------------------------------------------------------------------
(a) General. If, as a result of any merger, consolidation, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (i) the outstanding shares of Common Stock
are increased, decreased or exchanged for a different number or kind of shares
or other securities of the Company, or (ii) additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Common Stock or other securities, an
appropriate and proportionate adjustment may be made in (x) the maximum number
and kind of shares reserved for issuance under this Plan, (y) the number and
kind of shares or other securities subject to any then outstanding options under
this Plan, and (z) the price for each share subject
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<PAGE>
to any then outstanding options under this Plan, without changing the aggregate
purchase price as to which such options remain exercisable. Notwithstanding the
foregoing, no adjustment shall be made pursuant to this Section 15 if such
adjustment would cause this Plan to fail to comply with (A) Section 422 of the
Code and (B) Rule 16b-3.
(b) Board Authority to Make Adjustments. Any adjustments under this
Section 15 will be made by the Board, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive.
16. Certain Mergers, Consolidations and Other Reorganizations.
----------------------------------------------------------
(a) General. In the event of a consolidation or merger in which
outstanding shares of Common Stock are exchanged for securities, cash or other
property of any other corporation or entity or in the event of the sale of all
or substantially all of the assets of the Company or in the event of a
liquidation of the Company or in the event of any sale or series of sales of
shares of the Company's capital stock by the holders thereof which results in
any person or entity or group of affiliated persons or entities (other than the
owners of the Company's capital stock prior to such sale or sales) owning
capital stock of the Company possessing the voting power (under ordinary
circumstances) to elect a majority of the Board, the Board, or the board of
directors of any corporation assuming the obligations of the Company, may, in
its sole discretion, take any one or more of the following actions, as to
outstanding options: (i) provide that such options shall be assumed, or
equivalent options shall be substituted, by the acquiring or succeeding
corporation or entity (or an affiliate thereof), provided, however, that any
such options substituted for Incentive Stock Options shall meet the requirements
of Section 424(a) of the Code, (ii) upon written notice to the optionees,
provide that (A) all exercisable but unexercised options will terminate
immediately prior to the consummation of such transaction unless exercised by
the optionee within a specified period following the date of such notice and
prior to the consummation of such event or transaction and (B) all unexercisable
options will terminate upon consummation of such event or transaction, (iii) in
the event of a merger or consolidation under the terms of which holders of the
Common Stock of the Company will receive upon consummation thereof a payment for
each share surrendered in the merger or consolidation (the "Merger Price"), make
or provide for a payment to the optionees equal to the difference between (A)
the Merger Price times the number of shares of Common Stock subject to such
outstanding options (to the extent then exercisable at prices not in excess of
the Merger Price) and (B) the aggregate exercise price of all such outstanding
options, in exchange for the termination of such options, (iv) provide that all
or any outstanding options shall become exercisable in full immediately prior to
such event or transaction and shall cease to be exercisable at any time after
such event or transaction, or (v) take any other action with respect to
outstanding options that is not prohibited by (A) any other term or condition of
this Plan, (B) such terms and provisions of the Exchange Act (and the rules
promulgated thereunder) that bear upon this Plan or the options authorized or
granted under it and (C) in the case of Incentive Stock Options, such terms and
provisions of the Code (and the rules promulgated thereunder) that apply to such
Incentive Stock Options.
(b) Substitute Options. The Company may grant options under this Plan in
substitution for options held by employees of another corporation who become
employees of the Company or a subsidiary of the Company as the result of a
merger or consolidation of the
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<PAGE>
employing corporation with the Company or a subsidiary of the Company, or as a
result of the acquisition by the Company, or one of its subsidiaries, of
property or stock of the employing corporation. The Company may direct that
substitute options be granted on such terms and conditions as the Board
considers appropriate in its sole discretion in the circumstances consistent
with the provisions of this Plan.
17. No Special Employment or Relationship Rights.
--------------------------------------------
Nothing contained in this Plan or in any option shall confer upon any
optionee any right with respect to the continuation of his or her employment by
or relationship with the Company or any parent or subsidiary of the Company or
interfere in any way with the right of the Company or any parent or subsidiary
of the Company at any time to terminate such employment or relationship or to
increase or decrease the compensation of the optionee.
18. Other Employee Benefits.
-----------------------
Except as to plans which by their express terms include such amounts as
compensation, the amount of any compensation deemed to be received by an
employee as a result of the exercise of an option or the sale of shares received
upon such exercise will not constitute compensation with respect to which any
other employee benefits of such employee are determined, including, but not
limited to, benefits under any bonus, pension, profit-sharing, life insurance or
salary continuation plan, except as otherwise specifically determined by the
Board.
19. Amendment of this Plan.
----------------------
(a) The Board may at any time, and from time to time, modify or amend this
Plan in any respect, except that, if at any time the approval of the
stockholders of the Company is required under Section 422 of the Code or any
successor provision with respect to Incentive Stock Options, or Rule 16b-3, such
modification or amendment shall not become effective until such approval is
obtained.
(b) Except as provided in the last sentence of this Section 19(b), the
termination or any modification or amendment of this Plan shall not, without the
consent of an optionee, affect his or her rights under an option previously
granted to him or her. With the consent of the optionee, however, the Board may
amend outstanding stock option agreements between the Company and such optionee
in a manner not inconsistent with this Plan. In addition, the Board shall in
any event have the right to amend or modify (i) the terms and provisions of this
Plan and of any outstanding Incentive Stock Options granted under this Plan to
the extent necessary to qualify any or all such options for such favorable
federal income tax treatment (including deferral of taxation upon exercise) as
may be afforded Incentive Stock Options under Section 422 of the Code and (ii)
the terms and provisions of this Plan and of any outstanding option to the
extent necessary to ensure the qualification of this Plan under Rule 16b-3.
20. Withholding.
-----------
(a) The Company shall have the right to deduct from payments of any kind
otherwise due to the optionee any federal, state, local or foreign taxes of any
kind required by law to be
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<PAGE>
withheld with respect to any shares issued upon exercise of options under this
Plan. Subject to the prior approval of the Board, which may be withheld by the
Board in its sole discretion, the optionee may elect to satisfy such
obligations, in whole or in part, (i) by causing the Company to withhold shares
of Common Stock otherwise issuable pursuant to the exercise of an option or (ii)
by delivering to the Company shares of Common Stock already owned by the
optionee. The shares so delivered or withheld shall have a fair market value
equal to such withholding obligation. The fair market value of the shares used
to satisfy such withholding obligation shall be determined by the Board as of
the date that the amount of tax to be withheld is to be determined. An optionee
who has made an election described above under his or her stock option agreement
with the Company, consistent with the terms of this Section 20(a), may only
satisfy his or her withholding obligation with shares of Common Stock which are
not subject to any repurchase, forfeiture, unfulfilled vesting or other similar
requirements.
(b) Notwithstanding the foregoing, in the case of a Reporting Person, no
election to use shares for the payment of withholding taxes shall be effective
unless made in compliance with any applicable requirements of Rule 16b-3.
21. Cancellation and New Grant of Options.
-------------------------------------
In addition to, and not in limitation of, the provisions contained in
Section 16 hereof, the Board shall have the authority to effect, at any time and
from time to time, with the consent of the affected optionees and consistent
with the Plan, (a) the cancellation of any or all outstanding options under this
Plan and the grant in substitution therefor of new options under this Plan
covering the same or different numbers of shares of Common Stock and having an
option exercise price per share which may be lower or higher than the exercise
price per share of the canceled options or (b) the amendment of the terms of any
and all outstanding options under this Plan to provide an option exercise price
per share which is higher or lower than the then current exercise price per
share of such outstanding options.
22. Effective Date and Termination of this Plan.
-------------------------------------------
(a) Effective Date. This Plan shall become effective upon adoption by the
Board. Options may be granted under this Plan at any time after the effective
date and before the date fixed for termination of this Plan.
(b) Termination. Unless sooner terminated in accordance with Section 16,
this Plan shall terminate upon the tenth anniversary of the date of its adoption
by the Board. Options outstanding on such date shall continue to have force and
effect in accordance with the provisions of the stock option agreement
applicable to such options.
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<PAGE>
STOCK OPTION AGREEMENT
----------------------
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated as of _________
199__, by and between VREAM, Inc., an Illinois corporation (the "Company"), and
the individual named as the Holder on the signature page hereof (the "Holder").
1. Background. On November 7, 1995, the Company reserved certain shares
of Common Stock of the Company, without par value (the "Common Stock"), for
issuance to employees, officers and directors of, and consultants to, the
Company pursuant to the 1995 Stock Option Plan of VREAM, Inc. (the "Plan"),
which has been adopted and approved by the Board of Directors of the Company
(the "Board"). This Agreement (a) is being entered into as of the date hereof
(the "Date of Grant") and (b) documents the relative rights, privileges, powers,
duties, responsibilities and obligations of the parties hereto with respect to
the stock option which the Company granted to the Holder pursuant to the Plan as
of the Date of Grant (the "Stock Option"). The Stock Option is issued, and this
Agreement is entered into, in accordance with the terms of the Plan and the
Provisions of the Plan, including, but not limited to, Sections 13, 14, 15, 16,
17, 18, 19 and 20, are hereby incorporated in this Agreement by reference.
2. Definitions. In addition to other terms defined herein, when used
herein, the following capitalized terms shall have the following meanings:
"Approved Sale" means the sale of the Company to a third party in an
arm's-length transaction, whether by merger, consolidation, sale of all or
substantially all of its assets or sale of all or substantially all of the
capital stock of the Company.
"Cause" means (a) the Holder's commission of fraud, theft, embezzlement
or similar malfeasance or any felony, (b) the Holder's breach of Section 6 of
this Agreement, and (c) termination of the Holder's consulting relationship with
the Company for failure to perform the Holder's consulting services in a
satisfactory manner.
"Common Stock" has the meaning set forth in Section 1 hereof.
"Date of Grant" has the meaning set forth in Section 1 hereof.
"Exercise Price" has the meaning set forth in Section 3.1 hereof.
"Fundamental Change" means (a) a sale or transfer of all or
substantially all the assets of the Company on a consolidated basis in any
transaction or series of related transactions (other than sales in the ordinary
course of business), or (b) any merger, consolidation or reorganization to which
the Company is a party, except for a merger, consolidation or reorganization in
which, after giving effect to such merger, consolidation or reorganization, the
holders of the Company's outstanding capital stock (on a fully-diluted basis)
immediately prior to the merger, consolidation or reorganization will own
immediately following the merger,
<PAGE>
consolidation or reorganization the outstanding capital stock (on a fully
diluted basis) having a majority of the ordinary voting power to elect the
Board.
"Option Shares" means ____________ shares of Common Stock, subject to
adjustment as set forth in Section 3.7 hereof.
"Parent" means any corporation directly or indirectly owning shares of
capital stock entitling such corporation to elect a majority of the members of
the board of directors of the Company.
"Private Placement" means the closing of the sale of debt or equity
securities of the Company to one or more investors other than pursuant to a
registration statement declared effective under the Securities Act of 1933, as
amended.
"Purchased Option Shares" has the meaning set forth in Section 3.2
hereof.
"Representative" means the executor(s) or administrator(s) of the
Holder's estate or, if the Holder is incompetent, the Holder's guardian(s).
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Stock Option" has the meaning set forth in Section 1 hereof.
"Stock Sale" means any sale of outstanding shares of the capital stock
of the Company by the holders thereof if after giving effect to such sale the
Company's stockholders (on a fully diluted basis) prior to such sale do not own
immediately following such sale outstanding capital stock of the Company (on a
fully diluted basis) having the voting power (under ordinary circumstances) to
elect a majority of the Board.
"Subsidiary" means any corporation of which the Company or its Parent,
if any, or another Subsidiary owns stock entitling it (or any combination of
them) to elect a majority of the members of the board of directors of such
corporation.
"Unpurchased Option Shares" means all Option Shares (whether or not
available for purchase by the Holder pursuant to Section 3.3) which have not yet
been purchased pursuant to this Agreement.
3. Terms of Stock Option.
---------------------
3.1 Grant of the Option. Upon the terms and conditions hereinafter
set forth, the Company hereby grants to the Holder an option to purchase the
Option Shares at a price of $.0125 per share, subject to adjustment as set forth
in Section 3.7 hereof (the "Exercise Price").
3.2 Procedures for Exercise. Subject to the Stock Option becoming
vested and exercisable pursuant to Section 3.3, the Holder, during his or her
lifetime, may exercise the Stock Option in whole or in part at any time prior to
the earlier of (a) 5:00 p.m. (Chicago time)
2
<PAGE>
on _______________ 200__ (the "Expiration Date") and (b) the Stock Option's
earlier termination upon the terms set forth herein. In order to exercise the
Stock Option, the Holder shall give to the Company a written notice specifying
the number of Option Shares to be purchased, accompanied by payment in full of
the entire Exercise Price for such Option Shares in cash or certified check
payable to the order of the Company; provided, however, that the Company may, in
its sole discretion, permit the Holder to pay all or part of the Exercise Price
(i) in one or more future installments pursuant to an interest-bearing
promissory note of the Holder containing such terms as the Board, or an
authorized committee thereof, may approve, (ii) by delivering to the Company for
cancellation shares of Common Stock owned by the Holder at the time of such
exercise having a fair market value, determined by the Board, equal to the
aggregate exercise price of the Stock Options being exercised, and/or (iii) by
cancellation of outstanding options of the Holder exercisable at the time of
such exercise or withholding shares of Common Stock issuable to the Holder upon
exercise of Stock Options exercisable at the time of such exercise, which
options or shares have a fair market value, net of the applicable exercise
price, determined by the Board. Upon exercise of the Stock Option and payment
of the entire Exercise Price for the shares of Common Stock being purchased as
provided in the preceding sentence, the Company will prepare, execute and
deliver to the Holder a stock certificate ("Stock Certificate") issued in the
name of the Holder representing the number of Option Shares purchased hereunder
(the "Purchased Option Shares").
3.3 Vesting Schedule. Twenty-five percent (25%) of the Option Shares
shall become vested and exercisable on the first anniversary of the Date of
Grant. Thereafter, 2.083% of the Option Shares shall become vested and
exercisable on the last day of each of the next thirty-six (36) months (and any
Option Shares not vested and exercisable on the fourth anniversary of the Date
of Grant shall become vested and exercisable on such anniversary).
Notwithstanding the foregoing, if a Fundamental Change or Stock Sale occurs
prior to the Stock Option becoming vested and exercisable for all of the Option
Shares, all Option Shares that have not become vested and exercisable will
become vested and exercisable immediately prior to the consummation of such
Fundamental Change or Stock Sale, as the case may be.
3.4 Fractional Shares. Fractional shares will not be issued upon the
exercise of the Option but in any case where the Holder would, except for the
provisions of this Section 3.4, be entitled under the terms of this Agreement to
receive a fractional share upon the complete exercise of the Stock Option, the
Company will, upon the exercise of the Option for the largest number of whole
shares then called for, pay a sum in cash equal to the excess of the value of
such fractional share (determined in such reasonable manner and in good faith by
the Board or an authorized committee thereof) over the proportional part of the
Exercise Price represented by such fractional share.
3.5 Termination Events. (a) If the Holder's consulting relationship
with the Company terminates while the Stock Option is outstanding and
unexercised, in whole or in part:
(i) if such termination occurs for any reason on or prior to the
first anniversary of the Date of Grant, or if such termination occurs at
any time for Cause, the Stock Option shall terminate and cease to be
exercisable upon the date of such termination; and
3
<PAGE>
(ii) if such termination occurs after the first anniversary of the
Date of Grant other than for Cause, the Stock Option shall immediately
terminate for Option Shares which are not yet vested and exercisable
pursuant to Section 3.3. With respect to Option Shares which are vested
and exercisable pursuant to Section 3.3, the Stock Option shall terminate
and cease to be exercisable on the earlier of (A) six months after the date
of such termination and (B) the Expiration Date.
(b) The Company shall use its reasonable best efforts to give notice
to the Holder not less than fifteen (15) days prior to the consummation of a
Fundamental Change or Stock Sale. Upon the consummation of a Fundamental Change
or Stock Sale, the Stock Option shall terminate for all Unpurchased Option
Shares.
(c) In the event of the dissolution, liquidation or winding-up of the
Company, whether voluntary or involuntary, the Stock Option shall terminate for
all Unpurchased Option Shares immediately prior to such dissolution, liquidation
or winding-up.
(d) Notwithstanding subparagraphs (a), (b), or (c) above, if the
Holder violates Section 6, the Stock Option shall terminate and cease to be
exercisable as of and after the time of such violation.
3.6 No Rights. Nothing contained in the Plan or this Agreement shall
confer upon the Holder any right with respect to the continuation of the
Holder's consulting relationship with the Company, a Parent or any Subsidiary or
interfere in any way with the right of the Company, a Parent or any Subsidiary
at any time to terminate such relationship or to increase or decrease
compensation of the Holder.
3.7 Antidilution Provisions. In the event of any stock dividend,
stock split or combination of the Common Stock, the number of shares that are
subject to the Stock Option and the Exercise Price may be proportionately and
appropriately adjusted, without any change in the aggregate Exercise Price to be
paid for all Option Shares upon full exercise of the Stock Option. Any
adjustments under this Section 3.7 will be made by the Board, whose
determination as to what adjustments, if any, will be made and the extent
thereof will be final, binding and conclusive.
4. Representations of the Holder. The Holder represents and warrants to
-----------------------------
the Company as follows:
(a) the Holder will acquire the Option Shares, to the extent that the
Stock Option becomes vested and exercisable pursuant to the terms hereof and the
Holder exercises the Stock Option in whole or in part, solely for investment for
the Holder's own account and not with a view to the resale or distribution of
all or any part thereof;
(b) the Holder understands that (i) the Holder may purchase the Option
Shares only to the extent that the Stock Option becomes vested and exercisable
pursuant to Section 3.3 hereof, (ii) it is possible that the Stock Option will
not become exercisable for any of the Option Shares, (iii) none of the Company,
the Parent or any Subsidiary is obligated to continue their relationship with
the Holder, and (iv) none of the Option Shares have been registered under the
4
<PAGE>
Securities Act of 1933, as amended (the "Securities Act"), and the Holder may
have to hold the Option Shares, to the extent they become Purchased Option
Shares hereunder, for an indefinite period unless the offer and sale thereof is
subsequently registered under the Securities Act (and the Company is under no
obligation to so register any Purchased Option Shares) or an exemption is
available therefrom; and
(c) the Holder's permanent residence is at the address specified on
the signature page hereof.
5. Representations of the Company. The Company represents and warrants
to the Holder that (a) the Company is a corporation validly existing, and in
good standing under the laws of the State of Illinois, (b) this Agreement has
been duly authorized, executed, and delivered by the Company, (c) the Company
has the requisite power and authority to issue the Option Shares and to perform
its obligations under this Agreement, and (d) the execution, delivery, and
performance of this Agreement by the Company do not and will not violate or
result in a default under the Company's articles of incorporation or by-laws or
any agreement or instrument to which the Company is a party or by which it or
any of its property is bound.
6. Confidential Information. The Holder shall not, without the prior
written consent of the Company (or the Parent or any Subsidiary thereof), except
as may be required in connection with any judicial or administrative proceeding
or inquiry, disclose to any person or entity, other than an officer or director
of the Company (or the Parent or any Subsidiary thereof) or a person or entity
to whom disclosure is reasonably necessary or appropriate in connection with the
performance by the Holder of the Holder's duties as a director of, or an advisor
or consultant to, the Company (or the Parent or any Subsidiary thereof), any
material confidential information obtained by the Holder while providing
services for, the Company (or the Parent or any Subsidiary thereof) (or any
predecessor of any such entity) with respect to its business or assets,
including, but not limited to, material confidential information relating to the
properties, accounts, books, records, suppliers, trade secrets, and contracts of
the Company (or the Parent or any Subsidiary thereof) (or any predecessor of any
such entity); provided, however, that confidential information shall not include
any information known or available to the public (other than as a result of
unauthorized disclosure by the Holder).
7. Sale of the Company. If the Board of Directors of the Company and the
holders of 66-2/3% or more of the shares of Common Stock then outstanding
approve an Approved Sale, the Holder will consent to and raise no objections to
the Approved Sale, and (a) if the Approved Sale is structured as a sale of
stock, the Holder will agree to sell all of his or her Purchased Option Shares
on the terms and conditions approved by the holders of 66-2/3% or more of the
shares of Common Stock then outstanding, (b) if the Approved Sale is structured
as a merger or consolidation, the Holder will vote in favor thereof and will not
exercise any dissenters' rights of appraisal he or she may have under applicable
law, and (c) if the Approved Sale is structured as a sale of all or
substantially all of the assets of the Company and a subsequent dissolution and
liquidation of the Company, the Holder will vote in favor thereof and will vote
in favor of the subsequent dissolution and liquidation of the Company. The
Holder will take all necessary actions in connection with the consummation of
the Approved Sale as are reasonably requested by the Company. The provisions of
this Section 7 are applicable to the Holder only so long as
5
<PAGE>
the consideration to be paid with respect to each Purchased Option Share in the
Approved Sale is the same for each share of Common Stock of the Company.
7A. Purchase Rights Upon Termination. (a) If the Holder's consulting
relationship with the Company is terminated at any time for any reason, the
Company shall have the right (but not the obligation) to purchase from the
Holder any or all of the Purchased Option Shares for a purchase price per share
of Common Stock equal to the Fair Market Value of a share of the Common Stock on
the date of termination of such Holder's consulting relationship. "Fair Market
Value," with respect to a share of the Common Stock, means the fair market value
of such share, as the Board of Directors of the Company may reasonably determine
in good faith. Any such purchase shall be effectuated by the Company giving the
Holder notice of its desire to purchase the Purchased Option Shares within sixty
(60) days of the date of termination of such Holder's consulting relationship
with the Company, or with respect to any Purchased Option Shares purchased after
the date of such termination, sixty (60) days after the date of purchase of such
shares by the Holder. The closing(s) of such purchase of the Purchased Option
Shares shall be held ten business days after the Company gives the Holder notice
of its election to effect such purchase. The Company shall pay the
consideration due upon exercise of the rights hereunder in cash. The Holder
(and any other subsequent Holder) agrees to execute all such assignments and
stock powers as the Company deems necessary or desirable to effectuate such
purchase.
(b) The Company shall cause each certificate representing Purchased Option
Shares to be stamped or otherwise imprinted with a legend in the following form:
The securities represented by this certificate are subject to certain
restrictions, including, but not limited to, purchase rights, pursuant
to that certain Option Agreement between VREAM, Inc. and the original
holder of the options issued thereunder, a copy of which may be
obtained from VREAM, Inc. upon request.
(c) The provisions set forth in this Section 7A and Sections 7 and 8 of
this Agreement shall terminate upon the earlier of the consummation of an
Approved Sale and the consummation of a public offering of securities of the
Company pursuant to a registration statement declared effective by the
Securities and Exchange Commission pursuant to the Securities Act.
8. Shareholders Agreements. Upon exercise of the Option, the Holder will
agree in writing to be bound by that certain Shareholders' Agreement, dated as
of November 9, 1995 as a Management Stockholder and a Holder of Management
Securities (as such terms are defined therein). In connection with any
subsequent Private Placements, if one or more investors in such Private
Placement request the shareholders of the Company to execute a shareholder's
agreement as a condition to closing such Private Placement, the Holder will
agree (i) to be bound by the same restrictions (including restrictions applying
after the closing of such Private Placement) with respect to the Holder's
Purchased Option Shares as Edward LaHood ("LaHood") may agree to be bound by
with respect to shares of Common Stock owned by LaHood and (ii) to execute an
agreement containing such restrictions so long as LaHood executes such agreement
with respect to shares of Common Stock owned by LaHood.
6
<PAGE>
9. Miscellaneous.
-------------
9.1 Successors and Assigns; Binding Agreement. Subject to the
provisions of the Plan and Section 9.2 hereof, this Agreement shall inure to the
benefit of, be enforceable by and binding upon, the respective successors and
assigns of the Company and the Holder and their respective personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees and, with respect to Sections 7, 7A and 8 of this Agreement, each
transferee of all or any of the Purchased Option Shares, whether so expressed or
not.
9.2 Limitation on Alienation. Notwithstanding the terms of Section
9.1 hereof, the Holder shall not transfer, sell, convey, exchange or otherwise
dispose of (herein referred to as "disposition" or "to dispose of") the Stock
Option and the rights and privileges of the Holder under this Agreement, except
(i) by will or by the applicable laws of descent and distribution to a person
(or persons) who consents in writing to be bound by the terms of this Agreement
to the same extent as the Holder or (ii) by exercise pursuant to the terms of
this Agreement. During the lifetime of the Holder, the Stock Option shall be
exercisable only by the Holder.
9.3 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal law of, and not the law of conflicts of, the
State of Illinois applicable to contracts entered into and to be wholly
performed in Illinois.
9.4 Waivers. The waiver by either party of any right hereunder or of
any failure to perform or breach by the other party shall not be deemed a waiver
of any other right hereunder or of any other failure or breach by the other
party, whether of the same or a similar nature or otherwise. No waiver shall be
deemed to have occurred unless set forth in a writing executed by or on behalf
of the waiving party. No such written waiver shall be deemed a continuing
waiver unless specifically stated therein, and each such waiver shall operate
only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that
specifically waived.
9.5 Notices. All notices and communications that are required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or upon mailing by registered or
certified mail, postage prepaid, return receipt requested, as follows:
If to the Company, to:
VREAM, Inc.
223 West Erie Street
Suite 6NW
Chicago, Illinois 60610
Attention: President
If to the Holder, to the address set forth on the signature page hereto; or
to such other address as may be specified in a notice given by one party to the
other hereunder.
7
<PAGE>
9.6 Severability. If for any reason any term or provision of this
Agreement is held to be invalid or unenforceable, all other valid terms and
provisions hereof shall remain in full force and effect, and all of the terms
and provisions of this Agreement shall be deemed to be severable in nature.
9.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
9.8 Amendment. This Agreement may be amended or canceled by mutual
agreement of the parties in writing without the consent of any other person or
entity and, so long as the Holder lives, no person or entity, other than the
parties, shall have any rights under or interest in this Agreement or the
subject matter hereof.
9.9 Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersedes all prior oral or written
understandings between the parties, relating to the Option Shares. The Holder
acknowledges that he or she has received a copy of the Plan and in the event
that any provision of this Agreement is inconsistent with any provision of the
Plan, the provisions of the Plan shall be controlling.
9.10 Exhibits and Schedules. All exhibits and schedules hereto are an
integral part of this Agreement.
9.11 No Attachment. Except as required by law, no right to receive
Option Shares under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy, or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
9.12 No Rights as Stockholder. The Holder will not have any of the
rights of a stockholder with respect to the Option Shares except to the extent
that such Option Shares are actually issued pursuant to exercise of the Stock
Option. The existence of the Stock Option shall not affect in any way the right
or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations, or other changes to the
Company's capital structure or its business, or to effect any sale, merger or
consolidation of the Company, nor create any pre-emptive right on behalf of the
holder of the Stock Option to acquire any Common Stock or securities or
indebtedness convertible into or exchangeable for Common Stock.
9.13 Securities Act Legend. Until (a) the Purchased Option Shares
represented by such certificate are effectively registered under the Securities
Act (and the Company is under no obligation at any time to so register any of
such Purchased Option Shares), or (b) the holder of such securities delivers to
the Company a written opinion of counsel, which counsel and opinion are
reasonably acceptable to the Company, to the effect that such legend is no
longer necessary, the Company shall be entitled to cause each certificate
representing Purchased Option Shares to be stamped or otherwise imprinted with a
legend in substantially the following form:
8
<PAGE>
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and thus may
not be transferred unless so registered or unless an exemption from
registration is available."
[Remainder of page intentionally left blank.
Signature page follows.]
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock Option
Agreement as of the date first above written.
VREAM, INC.
HOLDER:
10
<PAGE>
January 31, 1997
PLATINUM technology, inc.
1815 South Meyers Road
Oakbrook Terrace, Illinois 60181
Ladies and Gentlemen::
We have acted as counsel for PLATINUM technology, inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
The Registration Statement relates to 70,257 shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), issuable upon exercise of options
granted under the VREAM, Inc. 1995 Stock Option Plan (the "Plan"). The Plan was
assumed by the Company in connection with the Company's acquisition of VREAM,
Inc. ("VREAM"), pursuant to the Agreement and Plan of Reorganization, dated as
of December 3, 1996 (the "Reorganization Agreement"), by and among the Company,
VREAM ACQUISITION CORP., VREAM and certain shareholders of VREAM. Pursuant to
the Reorganization Agreement, the options previously issued under the Plan
converted into options to purchase Common Stock.
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and written statements of directors, officers and
employees of, and the accountants for, the Company. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such instruments, documents and records as we have deemed relevant and necessary
to examine for the purpose of this opinion, including the following:
1. The Registration Statement;
2. The Restated Certificate of Incorporation of the Company, as
amended;
3. The Bylaws of the Company;
4. Resolutions adopted by the Board of Directors of the Company;
5. The Plan; and
6. The Reorganization Agreement.
<PAGE>
PLATINUM technology, inc.
January 31, 1997
Page 2
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the genuineness
of all signatures, the authenticity of the documents submitted to us as
originals and the conformity to authentic original documents of all documents
submitted to us as certified, conformed or reproduced copies.
Based upon and subject to the foregoing, we are of the opinion that the
70,257 shares of Common Stock covered by the Registration Statement, when issued
and delivered by the Company and paid for in accordance with the provisions of
the Plan, will be validly issued, fully paid and nonassessable shares of Common
Stock.
Our opinion expressed above is limited to the laws of the State of
Delaware, and we do not express any opinion herein concerning any other laws.
This opinion is solely for the information of the addressee hereof and is not to
be quoted in full or in part or otherwise referred to, nor is it to be filed
with any governmental agency or any other person without our prior written
consent. This opinion is given as of the date hereof and we assume no
obligation to advise you of changes that may hereafter be brought to our
attention.
We hereby consent to the use of this opinion for filing as Exhibit 5 to the
Registration Statement.
Very truly yours,
KATTEN MUCHIN & ZAVIS
<PAGE>
EXHIBIT 15
ACKNOWLEDGMENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
REGARDING INDEPENDENT AUDITORS' REVIEW REPORTS
The Board of Directors
PLATINUM technology, inc.:
With respect to the registration statement on Form S-8 of PLATINUM technology,
inc., we acknowledge our awareness of the use therein of our reports dated May
14, 1996, August 13, 1996, and October 30, 1996 related to our reviews of
interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Chicago, Illinois
January 29, 1997
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the registration statement on Form
S-8 of PLATINUM technology, inc. of our reports dated March 29, 1996, with
respect to the consolidated balance sheets of PLATINUM technology, inc. and
subsidiaries as of December 31, 1994 and 1995, and the related statements of
operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1995, and related schedule, which reports
appear in the Form S-3 (Registration No. 333-15421) of PLATINUM technology,
inc., dated November 18, 1996, as amended. Our report was based in part on the
reports of other auditors.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Chicago, Illinois
January 29, 1997
<PAGE>
Exhibit 23.2
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement of
PLATINUM technology, inc. on Form S-8 of our report dated April 28, 1995,
relating to the consolidated financial statements of Trinzic Corporation,
appearing in the Annual Report on Form 10-K of PLATINUM technology, inc. for the
year ended December 31, 1995.
/s/ Deloitte & Touche LLP
San Jose, California
January 29, 1997
<PAGE>
Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333___ ) pertaining to the VREAM, Inc. 1995 Stock Option Plan of
PLATINUM technology, inc. of our report dated September 2, 1994, included in the
PLATINUM technology, inc's Annual Report on Form 10-K for the year ended
December 31, 1995, with respect to the consolidated statements of income,
stockholders' equity and cash flows of Altai, Inc. for the years ended July 31,
1994, and 1993, which financial statements are not separately presented in
PLATINUM technology, inc.'s Annual Report on Form 10-K.
/s/ Ernst & Young LLP
Fort Worth, Texas
January 29, 1997
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
PLATINUM technology, inc. on Form S-8 of our report dated August 26, 1994, on
our audit of the financial statements of Answer Systems, Inc. for the year ended
June 30, 1994, which report is included in the 1995 Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
San Jose, California
January 29, 1997
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports for Locus Computing
Corporation dated March 20, 1995 included in PLATINUM technology, inc.'s
Form 10-K for the year ended December 31, 1995.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
January 29, 1997
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports for Softool Corporation
dated September 29, 1995 included in PLATINUM technology, inc.'s Form 10-K for
the year ended December 31, 1995.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
January 29, 1997
<PAGE>
EXHIBIT 23.7
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the registration statement on Form
S-8 of PLATINUM technology, inc. of our report dated March 20, 1996, with
respect to the balance sheets of Prodea Software Corporation as of December 31,
1995 and 1994, and the related statements of operations, stockholders' equity,
and cash flows for the years then ended, which report appears in the Form 8-K of
PLATINUM technology, inc. dated February 8, 1996, as amended.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Minneapolis, Minnesota
January 29, 1997
