<PAGE>
As filed with the Securities and Exchange Commission on November 19, 1998
Registration No. 333-
================================================================================
- --------------------------------------------------------------------------------
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)
PLATINUM technology, inc. Broad Based Stock Option Plan
(Full title of the 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 Street, Suite 1600
Chicago, IL 60661-3693
Fax Number: (312) 902-1061
-----------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed maximum Proposed maximum
offering price aggregate offering Amount of
Title of securities to be registered Amount to be registered(1) per share price registration fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value....... 2,403,300 shares(2) $20.5416(3) $ 49,367,627(3) $13,724.20
- -------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001 par value....... 12,596,700 shares(4) $ 16.625(5) $209,420,138(5) $58,218.80
- -------------------------------------------------------------------------------------------------------------------------
TOTAL 15,000,000 shares $258,787,765 $71,943.00
=========================================================================================================================
</TABLE>
(1) Includes an indeterminate number of shares of Common Stock, par value $.001
per share, of PLATINUM technology, inc. ("PLATINUM Common Stock") that may
be issuable by reason of stock splits, stock dividends or similar
transactions. Also includes associated rights (the "Rights") to purchase
1/100 of a share of Series A Participating Preferred Stock, par value $.01
per share, of PLATINUM technology, inc. The Rights initially attached to
and trade with PLATINUM Common Stock. The value attributable to such
Rights, if any, is reflected in the market price of the PLATINUM Common
Stock.
(2) This amount reflects an aggregate of 2,403,300 shares of PLATINUM Common
Stock issuable upon exercise of outstanding options under the PLATINUM
technology, inc. Broad Based Stock Option Plan (the "Broad Based Plan")
(3) Based upon the weighted average exercise price of the shares subject to
outstanding options under the Broad Based Plan.
(4) This amount reflects an aggregate of 12,596,700 shares of PLATINUM Common
Stock which are issuable under the Broad Based Plan.
(5) Based upon the high and low sales prices of PLATINUM Common Stock, as
reported on the Nasdaq National Market on November 12, 1998, and used
solely for the purpose 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 PLATINUM technology, inc. Broad Based Stock Option 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").
<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 Company's Annual Report on Form 10-K for the year ended December
31, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998;
3. The Company's Current Reports on Form 8-K dated January 27, 1998,
March 3, 1998, April 16, 1998, April 21, 1998 (as amended by a
Current Report on Form 8-K/A dated May 6, 1998), May 28, 1998, July
14, 1998, August 4, 1998, August 13, 1998 and October 15, 1998;
4. 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
5. The description of the 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 and 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 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.
3
<PAGE>
In addition, Article Nine of the Company's Restated 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.
<TABLE>
<CAPTION>
Item 8. Exhibits.
<C> <S>
4.1 Conformed copy of the 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).
4.2 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")).
4.3 Specimen stock certificate representing PLATINUM Common Stock
(incorporated by reference to Exhibit 4.1 to the IPO S-1).
4.4 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).
4.5 PLATINUM technology, inc. Restated Broad Based Stock Option Plan
(the "Broad Based Plan").
4.6 Form of Stock Option Agreement under the Broad Based Plan
(incorporated by reference to Exhibit 10.4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998).
5 Opinion of counsel as to legality of shares of Common Stock being
offered (including consent).
15 Acknowledgment of KPMG Peat Marwick LLP Regarding Independent
Auditors' Review Report.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's
financial statements.
23.2 Consent of Arthur Andersen LLP with respect to Mastering, Inc.'s
financial statements.
23.3 Consent of Ernst & Young LLP with respect to Logic Works, Inc.'s
financial statements.
23.4 Consent of Katten Muchin & Zavis (included in their opinion filed
as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
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:
4
<PAGE>
(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
a 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;
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.
5
<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 19th day
of November, 1998.
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, Larry S. Freedman 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 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.
SIGNATURES
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 this 19th day of November, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ ANDREW J. FILIPOWSKI President, Chief Executive Officer (principal
- ------------------------- executive officer) and Chairman of the Board of
Andrew J. Filipowski Directors
/s/ MICHAEL P. CULLINANE Executive Vice President, Chief Financial Officer
- ------------------------- (principal financial and accounting officer),
Michael P. Cullinane Treasurer and a Director
/s/ PAUL L. HUMENANSKY Executive Vice President, Chief Operations Officer
- ------------------------- and a Director
Paul L. Humenansky
Director
- -------------------------
James E. Cowie
Director
- -------------------------
Steven D. Devick
Director
- -------------------------
Arthur P. Frigo
/s/ GIAN FULGONI Director
- -------------------------
Gian Fulgoni
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<C> <S>
4.5 PLATINUM technology, inc. Restated Broad Based Stock Option Plan.
5 Opinion of counsel as to legality of shares of Common Stock being
offered (including consent).
15 Acknowledgment of KPMG Peat Marwick LLP Regarding Independent
Auditors' Review Report.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's
financial statements.
23.2 Consent of Arthur Andersen LLP with respect to Mastering, Inc.'s
financial statements.
23.3 Consent of Ernst & Young LLP with respect to Logic Works, Inc.'s
financial statements.
23.4 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>
7
<PAGE>
EXHIBIT 4.5
PLATINUM technology, inc.
RESTATED
BROAD-BASED STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
ESTABLISHMENT.................................................... 1
1.1 Purpose................................................... 1
ARTICLE II
DEFINITIONS...................................................... 1
2.1 "Affiliate"............................................... 1
2.2 "Agreement"............................................... 1
2.3 "Beneficiary"............................................. 1
2.4 "Board of Directors" or "Board"........................... 1
2.5 "Cause"................................................... 2
2.6 "Change in Control" and "Change in Control Price"......... 2
2.7 "Code" or "Internal Revenue Code"......................... 2
2.8 "Commission".............................................. 2
2.9 "Committee"............................................... 2
2.10 "Common Stock"............................................ 2
2.11 "Company"................................................. 2
2.12 "Disability".............................................. 2
2.13 "Effective Date".......................................... 3
2.14 "Exchange Act"............................................ 3
2.15 "Fair Market Value"....................................... 3
2.16 "Grant Date".............................................. 3
2.17 "NASDAQ".................................................. 3
2.18 "Option Period"........................................... 3
2.19 "Option Price"............................................ 3
2.20 "Participant"............................................. 3
2.21 "Performance Option"...................................... 4
2.22 "Plan".................................................... 4
2.23 "Representative".......................................... 4
2.24 "Retirement".............................................. 4
2.25 "Rule 16b-3".............................................. 4
2.26 "Securities Act".......................................... 4
2.27 "Stock Option" or "Option"................................ 4
2.28 "Termination of Employment"............................... 4
ARTICLE III
ADMINISTRATION................................................... 5
3.1 Committee Structure and Authority......................... 5
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IV
STOCK SUBJECT TO PLAN............................................... 7
4.1 Number of Shares............................................. 7
4.2 Release of Shares............................................ 7
4.3 Restrictions on Shares....................................... 8
4.4 Stockholder Rights........................................... 8
4.5 Reasonable Efforts To Register............................... 8
4.6 Anti-Dilution................................................ 9
ARTICLE V
ELIGIBILITY......................................................... 9
5.1 Eligibility.................................................. 9
ARTICLE VI
STOCK OPTIONS....................................................... 10
6.1 General...................................................... 10
6.2 Grant and Exercise........................................... 10
6.3 Terms and Conditions......................................... 10
6.4 Termination by Reason of Death............................... 12
6.5 Termination by Reason of Disability.......................... 12
6.6 Other Termination............................................ 12
6.7 Cashing Out of Option........................................ 12
ARTICLE VII
PERFORMANCE OPTIONS................................................. 13
ARTICLE VIII
PROVISIONS APPLICABLE TO STOCK ACQUIRED UNDER THE PLAN.............. 13
8.1 Limited Transfer During Offering............................. 13
8.2 Committee Discretion......................................... 13
8.3 No Company Obligation........................................ 13
ARTICLE IX
CHANGE IN CONTROL PROVISIONS........................................ 14
9.1 Impact of Event.............................................. 14
9.2 Definition of Change in Control.............................. 14
9.3 Change in Control Price...................................... 15
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE X
MISCELLANEOUS.................................................... 15
10.1 Amendments and Termination................................ 15
10.2 Stand-Alone, Additional, Tandem and Substitute Options.... 16
10.3 Form and Timing of Payment Under Options; Deferrals....... 16
10.4 Unfunded Status of Plan; Limits on Transferability........ 17
10.5 General Provisions........................................ 17
10.6 Mitigation of Excise Tax.................................. 18
10.7 Rights with Respect to Continuance of Employment.......... 19
10.8 Options in Substitution for Options Granted by Other
Corporations.............................................. 19
10.9 Procedure for Adoption.................................... 19
10.10 Procedure for Withdrawal.................................. 19
10.11 Delay..................................................... 20
10.12 Headings.................................................. 20
10.13 Severability.............................................. 20
10.14 Successors and Assigns.................................... 20
10.15 Entire Agreement........................................... 20
</TABLE>
<PAGE>
PLATINUM technology, inc. RESTATED BROAD-BASED STOCK OPTION PLAN
ARTICLE I
---------
ESTABLISHMENT
-------------
1.1 Purpose.
The PLATINUM technology, inc. Restated Broad-Based Stock Option Plan
("Plan") is hereby established by PLATINUM technology, inc. ("Company"). The
purpose of the Plan is to promote the overall financial objectives of the
Company and its stockholders by motivating those persons selected to participate
in the Plan to achieve long-term growth in stockholder equity in the Company and
by retaining the association of those individuals who are instrumental in
achieving this growth. The Plan is adopted effective as of June 15, 1998.
ARTICLE II
----------
DEFINITIONS
-----------
For purposes of the Plan, the following terms are defined as set forth
below:
2.1 "Affiliate" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated association or other
entity (other than the Company) that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company including, without limitation, any member of an affiliated group of
which the Company is a common parent corporation as provided in Section 1504 of
the Code.
2.2 "Agreement" means, individually or collectively, any agreement
entered into pursuant to the Plan pursuant to which an Option is granted to a
Participant.
2.3 "Beneficiary" means the person, persons, trust or trusts which have
been designated by a Participant in his or her most recent written beneficiary
designation filed with the Committee to receive the benefits specified under the
Plan upon such Participant's death or to which Options are transferred if and to
the extent permitted hereunder. If, upon a Participant's death, there is no
designated Beneficiary or surviving designated Beneficiary, then the term
Beneficiary means the person, persons, trust or trusts entitled by will or the
laws of descent and distribution to receive such benefits.
2.4 "Board of Directors" or "Board" means the Board of Directors of the
Company.
1
<PAGE>
2.5 "Cause" shall mean, for purposes of whether and when a Participant
has incurred a Termination of Employment for Cause, any act or omission which
permits the Company to terminate the written agreement or arrangement between
the Participant and the Company or an Affiliate for "cause" as defined in such
agreement or arrangement, or in the event there is no such agreement or
arrangement or the agreement or arrangement does not define the term "cause" or
a substantially equivalent term, then Cause shall mean (a) any act or omission
which the Company believes is of a criminal nature and the result of which the
Company believes is detrimental to the interests of the Company or an Affiliate,
(b) the material breach of a fiduciary duty owing to the Company, including,
without limitation, fraud or embezzlement, or (c) conduct, or the omission of
conduct, on the part of the Participant which constitutes a material breach of
any statutory or common-law duty of loyalty to the Company or an Affiliate.
2.6 "Change in Control" and "Change in Control Price" have the meanings
set forth in Sections 9.2 and 9.3, respectively.
2.7 "Code" or "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, Treasury Regulations (including proposed regulations)
thereunder and any subsequent Internal Revenue Code.
2.8 "Commission" means the Securities and Exchange Commission or any
successor agency.
2.9 "Committee" means the Compensation Committee of the Board or such
other Board committee as may be designated by the Board to administer the Plan.
2.10 "Common Stock" means the shares of the regular voting Common Stock,
$.001 par value, whether presently or hereafter issued, and any other stock or
security resulting from adjustment thereof as described hereinafter or the
common stock of any successor to the Company which is designated for the purpose
of the Plan.
2.11 "Company" means PLATINUM technology, inc., a Delaware corporation, and
includes any successor or assignee corporation or corporations into which the
Company may be merged, changed or consolidated; any corporation for whose
securities the securities of the Company shall be exchanged; and any assignee of
or successor to substantially all of the assets of the Company.
2.12 "Disability" means a mental or physical illness that entitles the
Participant to receive benefits under the long-term disability plan of the
Company or an Affiliate, or if the Participant is not covered by such a plan or
the Participant is not an employee of the Company or an Affiliate, a mental or
physical illness that renders a Participant totally and permanently incapable of
performing the Participant's duties for the Company or an Affiliate.
Notwithstanding the foregoing, a Disability shall not qualify under this Plan if
it is the result of (i) a willfully self-inflicted injury or willfully self-
2
<PAGE>
induced sickness; or (ii) an injury or disease contracted, suffered, or incurred
while participating in a criminal offense. The determination of Disability
shall be made by the Committee. The determination of Disability for purposes of
this Plan shall not be construed to be an admission of disability for any other
purpose.
2.13 "Effective Date" means June 15, 1998.
2.14 "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
2.15 "Fair Market Value" means the fair market value of Common Stock as
determined by the Committee or under procedures established by the Committee.
Unless otherwise determined by the Committee, the Fair Market Value per share of
Common Stock as of any given date shall be the closing sale price per share
reported on a consolidated basis for stock listed on the principal stock
exchange or market on which Common Stock is traded on the date as of which such
value is being determined or, if there is no sale on that date, then on the last
previous day on which a sale was reported.
2.16 "Grant Date" means the date as of which an Option is granted pursuant
to the Plan.
2.17 "NASDAQ" means The Nasdaq Stock Market, including the Nasdaq National
Market.
2.18 "Option Period" means the period during which an Option shall be
exercisable in accordance with the related Agreement and Article VI.
2.19 "Option Price" means the price at which the Common Stock may be
purchased under an Option as provided in Section 6.3(b).
2.20 "Participant" means a person who satisfies the eligibility
conditions of Article V and to whom an Option has been granted by the Committee
under the Plan, and in the event a Representative is appointed for a Participant
or another person becomes a Representative, then the term "Participant" shall
mean such Representative. The term shall also include a trust for the benefit
of the Participant, the Participant's parents, spouse or descendants, or a
custodian under a uniform gifts to minors act or similar statute for the benefit
of the Participant's descendants, to the extent permitted by the Committee.
Notwithstanding the foregoing, the term "Termination of Employment" shall mean
the Termination of Employment of the person to whom the Option was originally
granted.
2.21 "Performance Option" means an Option, granted to a Participant under
Article VII hereof, to purchase shares of Common Stock based upon performance
criteria specified by the Committee.
3
<PAGE>
2.22 "Plan" means the PLATINUM technology, inc. Restated Broad-Based Stock
Option Plan, as herein set forth and as may be amended from time to time.
2.23 "Representative" means (a) the person or entity acting as the
executor or administrator of a Participant's estate pursuant to the last will
and testament of a Participant or pursuant to the laws of the jurisdiction in
which the Participant had the Participant's primary residence at the date of the
Participant's death; (b) the person or entity acting as the guardian or
temporary guardian of a Participant; (c) the person or entity which is the
Beneficiary of the Participant upon or following the Participant's death; or (d)
any person to whom an Option has been permissibly transferred; provided that
only one of the foregoing shall be the Representative at any point in time as
determined under applicable law and recognized by the Committee.
2.24 "Retirement" means the Participant's Termination of Employment after
attaining either the normal retirement age or the early retirement age as
defined in the principal (as determined by the Committee) tax-qualified plan of
the Company or an Affiliate, if the Participant is covered by such a plan, or if
the Participant is not covered by such a plan, then age 65.
2.25 "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to the Plan and Participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
2.26 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
2.27 "Stock Option" or "Option" means a right, granted to a Participant
under Section 6.1 hereof, to purchase Common Stock at a specified price during
specified time periods.
2.28 "Termination of Employment" means the occurrence of any act or
event, whether pursuant to an employment agreement or otherwise, that actually
or effectively causes or results in the person's ceasing, for whatever reason,
to be an officer, independent contractor, director or employee of the Company or
of any Affiliate, or to be an officer, independent contractor, director or
employee of any entity that provides services to the Company or an Affiliate,
including, without limitation, death, Disability, dismissal, severance at the
election of the Participant, Retirement, or severance as a result of the
discontinuance, liquidation, sale or transfer by the Company or its Affiliates
of all businesses owned or operated by the Company or its Affiliates. With
respect to any person who is not an employee with respect to the Company or a
subsidiary of the Company, the Agreement shall establish what act or event shall
constitute a Termination of Employment for purposes of the Plan. A transfer of
employment from the Company to an Affiliate, or from an Affiliate to the
Company, will not be a Termination of Employment, unless expressly determined by
the Committee. A Termination of Employment shall occur for an employee who is
4
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employed by an Affiliate if the Affiliate shall cease to be an Affiliate, and
the Participant shall not immediately thereafter become an employee of the
Company or an Affiliate.
In addition, certain other terms used herein have definitions given to them
in the first place in which they are used.
ARTICLE III
-----------
ADMINISTRATION
--------------
3.1 Committee Structure and Authority. The Plan shall be administered
by the Committee. A majority of the Committee shall constitute a quorum at any
meeting thereof (including by telephone conference) and the acts of a majority
of the members present, or acts approved in writing by a majority of the entire
Committee without a meeting, shall be the acts of the Committee for purposes of
this Plan. The Committee may authorize any one or more of its members or an
officer of the Company to execute and deliver documents on behalf of the
Committee. A member of the Committee shall not exercise any discretion
respecting himself or herself under the Plan. The Board shall have the
authority to remove, replace or fill any vacancy of any member of the Committee
upon notice to the Committee and the affected member. Any member of the
Committee may resign upon notice to the Board. The Committee may allocate among
one or more of its members, or may delegate to one or more of its agents, such
duties and responsibilities as it determines.
Among other things, the Committee shall have the authority, subject to the
terms of the Plan:
(a) to select those persons to whom Options may be granted from time
to time;
(b) to determine whether and to what extent Options are to be granted
hereunder;
(c) to determine the number of shares of Common Stock to be covered by
each Option granted hereunder;
(d) to determine the terms and conditions of any Option granted
hereunder (including, but not limited to, the Option Price, the Option
Period, any exercise restriction or limitation and any exercise
acceleration, forfeiture or waiver regarding any Option, any performance
criteria and the satisfaction of each criteria);
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(e) to adjust the terms and conditions, at any time or from time to
time, of any Option, subject to the limitations of Section 10.1;
(f) to determine to what extent and under what circumstances Common
Stock and other amounts payable with respect to an Option shall be
deferred;
(g) to determine under what circumstances an Option may be settled in
cash or Common Stock;
(h) to provide for the forms of Agreements to be utilized in
connection with the Plan;
(i) to determine whether a Participant has a Disability or a
Retirement;
(j) to determine what securities law requirements are applicable to
the Plan, Options and the issuance of shares of Common Stock under the Plan
and to require of a Participant that appropriate action be taken with
respect to such requirements;
(k) to cancel, with the consent of the Participant or as otherwise
provided in the Plan or an Agreement, outstanding Options;
(l) to interpret and make final determinations with respect to the
remaining number of shares of Common Stock available under this Plan;
(m) to require, as a condition of the exercise of an Option or the
issuance or transfer of a certificate of Common Stock, the withholding from
a Participant of the amount of any Federal, state or local taxes as may be
necessary in order for the Company or any other employer to obtain a
deduction or as may be otherwise required by law;
(n) to determine whether and with what effect a Participant has
incurred a Termination of Employment;
(o) to determine whether the Company or any other person has a right
or obligation to purchase Common Stock from a Participant and, if so, the
terms and conditions on which such Common Stock is to be purchased;
(p) to determine the restrictions or limitations on the transfer of
Common Stock;
(q) to determine whether an Option is to be adjusted, modified or
purchased, or is to become fully exercisable, under the Plan or the terms
of an Agreement;
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(r) to determine the permissible methods of Option exercise and
payment, including cashless exercise arrangements;
(s) to adopt, amend and rescind such rules and regulations as, in its
opinion, may be advisable in the administration of the Plan; and
(t) to appoint and compensate agents, counsel, auditors or other
specialists to aid it in the discharge of its duties.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any Option issued under the Plan (and any Agreement) and to otherwise
supervise the administration of the Plan. The Committee's policies and
procedures may differ with respect to Options granted at different times or to
different Participants.
Any determination made by the Committee pursuant to the provisions of the
Plan shall be made in its sole discretion, and in the case of any determination
relating to an Option, may be made at the time of the grant of the Option or,
unless in contravention of any express term of the Plan or an Agreement, at any
time thereafter. All decisions made by the Committee pursuant to the provisions
of the Plan shall be final and binding on all persons, including the Company and
Participants. No determination shall be subject to de novo review if challenged
in court.
ARTICLE IV
----------
STOCK SUBJECT TO PLAN
---------------------
4.1 Number of Shares. Subject to the adjustment under Section 4.6, the
total number of shares of Common Stock reserved and available for distribution
pursuant to Options under the Plan shall be Fifteen Million (15,000,000) shares
of Common Stock authorized for issuance. Such shares may consist, in whole or in
part, of authorized and unissued shares or treasury shares.
4.2 Release of Shares. If any shares of Common Stock that are subject
to any Option cease to be subject to an Option or are forfeited, if any Option
otherwise terminates without issuance of shares of Common Stock being made to
the Participant, or if any shares (whether or not restricted) of Common Stock
are received by the Company in connection with the exercise of an Option,
including the satisfaction of tax withholding obligation, such shares, in the
discretion of the Committee, may again be available for distribution in
connection with Options under the Plan.
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4.3 Restrictions on Shares. Shares of Common Stock issued in conjunction
with an Option shall be subject to the terms and conditions specified herein and
to such other terms, conditions and restrictions as the Committee in its
discretion may determine or provide in an Agreement. The Company shall not be
required to issue or deliver any certificates for shares of Common Stock, cash
or other property prior to (i) the listing of such shares on any stock exchange
or NASDAQ (or other public market) on which the Common Stock may then be listed
(or regularly traded), (ii) the completion of any registration or qualification
of such shares under Federal or state law, or any ruling or regulation of any
government body which the Committee determines to be necessary or advisable, and
(iii) the satisfaction of any applicable withholding obligation in order for the
Company or an Affiliate to obtain a deduction with respect to the exercise of an
Option. The Company may cause any certificate for any share of Common Stock to
be delivered to be properly marked with a legend or other notation reflecting
the limitations on transfer of such Common Stock as provided in this Plan or as
the Committee may otherwise require. The Committee may require any person
exercising an Option to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or delivery of
the shares of Common Stock in compliance with applicable law or otherwise.
Fractional shares shall not be delivered, but shall be rounded to the next lower
whole number of shares.
4.4 Stockholder Rights. No person shall have any rights of a
stockholder as to shares of Common Stock subject to an Option until, after
proper exercise of the Option or other action required, such shares shall have
been recorded on the Company's official stockholder records as having been
issued or transferred. Upon exercise of the Option or any portion thereof and
payment of the Option Price, the Company will have thirty (30) days in which to
issue the shares, and the Participant will not be treated as a stockholder for
any purpose whatsoever prior to such issuance. No adjustment shall be made for
cash dividends or other rights for which the record date is prior to the date
such shares are recorded as issued or transferred in the Company's official
stockholder records, except as provided herein or in an Agreement.
4.5 Reasonable Efforts To Register. The Company will use its reasonable
efforts to file with the Commission a registration under the Securities Act,
covering the Common Stock issuable upon exercise of Options, on Commission Form
S-8 if available to the Company for this purpose (or any successor or alternate
form that is substantially similar to that form to the extent available to
effect such registration), in accordance with the applicable rules and
regulations, as soon as the Committee, in its sole discretion, shall deem such
registration appropriate. The Company will use its reasonable efforts to cause
the registration statement to become effective and will file such supplements
and amendments to the registration statement as may be necessary to keep the
registration statement in effect until the earliest of (a) the expiration of the
Option Period of the last Option outstanding, (b) the date the Company is no
longer a reporting company under the Exchange Act and (c) the date all
outstanding Options have been exercised.
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4.6 Anti-Dilution. In the event of any Company stock dividend, stock
split, combination or exchange of shares, recapitalization or other change in
the capital structure of the Company, corporate separation or division of the
Company (including, but not limited to, a split-up, spin-off, split-off or
distribution to Company stockholders other than a normal cash dividend), sale by
the Company of all or a substantial portion of its assets (measured on either a
stand-alone or consolidated basis), reorganization, rights offering, a partial
or complete liquidation, or any other corporate transaction, Company stock
offering or event involving the Company and having an effect similar to any of
the foregoing, then the Committee shall adjust or substitute, as the case may
be, the number of shares of Common Stock available for Options under the Plan,
the number of shares of Common Stock covered by outstanding Options, the
exercise price per share of outstanding Options, and performance conditions and
any other characteristics or terms of the Options as the Committee shall deem
necessary or appropriate to reflect equitably the effects of such changes to the
Participants; provided, however, that any fractional shares resulting from such
adjustment shall be eliminated by rounding to the next lower whole number of
shares.
ARTICLE V
---------
ELIGIBILITY
-----------
5.1 Eligibility. Except as herein provided, the persons who shall be
eligible to participate in the Plan and be granted Options shall be those
persons who are directors, officers, employees and consultants of the Company or
any Affiliate or subsidiary of the Company, who shall be in a position, in the
opinion of the Committee, to make contributions to the growth, management,
protection and success of the Company and its subsidiaries. Of those persons
described in the preceding sentence, the Committee may, from time to time,
select persons to be granted Options and shall determine the terms and
conditions with respect thereto. In making any such selection and in
determining the terms and conditions of the Option, the Committee may give
consideration to the person's functions and responsibilities, the person's
contributions to the Company and its subsidiaries, the value of the individual's
service to the Company and its subsidiaries and such other factors deemed
relevant by the Committee. The Committee may designate in writing any person
who is not eligible to participate in the Plan if such person would otherwise be
eligible to participate in this Plan (and members of the Committee are expressly
excluded from participation in the Plan).
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ARTICLE VI
----------
STOCK OPTIONS
-------------
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6.1 General. The Committee shall have authority to grant Stock Options
under the Plan at any time or from time to time. Stock Options granted hereunder
are not intended to be, and are not designated as, "incentive stock options"
within the meaning of Section 422 of the Code. Stock Options granted hereunder
shall be taxable pursuant to Section 83 of the Code. An Option shall entitle the
Participant to receive shares of Common Stock upon exercise of such Option,
subject to the Participant's satisfaction in full of any conditions,
restrictions or limitations imposed in accordance with the Plan or an Agreement
(the terms and provisions of which may differ from other Agreements), including,
without limitation, payment of the Option Price.
6.2 Grant and Exercise. The grant of a Stock Option shall occur as of the
date the Committee determines. Each Option granted under this Plan shall be
evidenced by an Agreement, in a form approved by the Committee, which shall
embody the terms and conditions of such Option and which shall be subject to the
express terms and conditions set forth in the Plan. Such Agreement shall become
effective upon execution by the Participant.
6.3 Terms and Conditions. Stock Options shall be subject to such terms
and conditions as shall be determined by the Committee, including the following:
(a) Option Period. The Option Period of each Stock Option shall be
fixed by the Committee; provided that no Stock Option shall be exercisable
more than ten (10) years after the date the Stock Option is granted.
(b) Option Price. The Option Price per share of the Common Stock
purchasable under an Option shall be determined by the Committee; provided,
however, that the Option Price per share shall be not less than the Fair
Market Value per share on the date the Option is granted.
(c) Exercisability. Subject to Section 9.1, Stock Options shall be
exercisable at such time or times and subject to such terms and conditions
as shall be determined by the Committee. If the Committee provides that any
Stock Option is exercisable only in installments, the Committee may at any
time waive such installment exercise provisions, in whole or in part. In
addition, the Committee may at any time accelerate the exercisability of
any Stock Option.
(d) Method of Exercise. Subject to the provisions of this Article
VI, a Participant may exercise Stock Options, in whole or in part, at any
time during the Option Period by the Participant's giving written notice of
exercise on a form provided by the Committee (if available) to the Company
specifying the number of shares of Common Stock subject to the Stock Option
to be purchased. Such notice shall be accompanied by payment in full of the
purchase price by cash or check or such other form of payment as the
Company may accept. If set forth in the applicable Agreement or otherwise
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<PAGE>
approved by the Committee, payment in full or in part may also be made (i)
by delivering Common Stock already owned by the Participant having a total
Fair Market Value on the date of such delivery equal to the Option Price;
(ii) by the execution and delivery of a note or other evidence of
indebtedness (and any security agreement thereunder) satisfactory to the
Committee and permitted in accordance with Section 6.3(e); (iii) by the
delivery of cash or the extension of credit by a broker-dealer to whom the
Participant has submitted a notice of exercise or otherwise indicated an
intent to exercise an Option (in accordance with Part 220, Chapter II,
Title 12 of the Code of Federal Regulations, so-called "cashless"
exercise); or (iv) by any combination of the foregoing. No shares of Common
Stock shall be issued until full payment therefor, as determined by the
Committee, has been made. A Participant shall have all of the rights of a
stockholder of the Company holding the class of Common Stock that is
subject to such Stock Option (including, if applicable, the right to vote
the shares and the right to receive dividends), when the Participant has
given written notice of exercise, has paid in full for such shares and such
shares have been recorded on the Company's official stockholder records as
having been issued or transferred.
(e) Company Loan or Guarantee. Upon the exercise of any Option and
subject to the pertinent Agreement and the discretion of the Committee, the
Company may at the request of the Participant:
(i) lend to the Participant an amount equal to such portion of
the Option Price as the Committee may determine; or
(ii) guarantee a loan obtained by the Participant from a third-
party for the purpose of tendering the Option Price.
The terms and conditions of any loan or guarantee, including the term,
interest rate and any security interest thereunder and whether the loan
shall be with recourse, shall be determined by the Committee, except that
no extension of credit or guarantee shall obligate the Company for an
amount to exceed the lesser of the aggregate Fair Market Value per share of
the Common Stock on the date of exercise, less the par value of the shares
of Common Stock to be purchased upon the exercise of the Option, or the
amount permitted under applicable laws or the regulations and rules of the
Federal Reserve Board and any other governmental agency having
jurisdiction.
(f) Non-transferability of Options. Except as otherwise provided in
an Agreement or determined by the Committee, no Stock Option or interest
therein shall be transferable by the Participant other than by will or by
the laws of descent and distribution, and all Stock Options shall be
exercisable during the Participant's lifetime only by the Participant.
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<PAGE>
6.4 Termination by Reason of Death. Unless otherwise provided in an
Agreement or determined by the Committee, if a Participant incurs a Termination
of Employment due to death, any unexpired and unexercised Stock Option held by
such Participant shall thereafter be fully exercisable for a period of ninety
(90) days following the date of the appointment of a Representative (or such
other period or no period as the Committee may specify) or until the expiration
of the Option Period, whichever period is the shorter.
6.5 Termination by Reason of Disability. Unless otherwise provided in an
Agreement or determined by the Committee, if a Participant incurs a Termination
of Employment due to a Disability, any unexpired and unexercised Stock Option
held by such Participant shall thereafter be fully exercisable by the
Participant for the period of ninety (90) days (or such other period or no
period as the Committee may specify) immediately following the date of such
Termination of Employment or until the expiration of the Option Period,
whichever period is shorter, and the Participant's death at any time following
such Termination of Employment due to Disability shall not affect the foregoing.
6.6 Other Termination. Unless otherwise provided in an Agreement or
determined by the Committee, if a Participant incurs a Termination of Employment
due to Retirement, or the Termination of Employment is involuntary on the part
of the Participant (but is not due to death or Disability or with Cause), any
Stock Option held by such Participant shall thereupon terminate, except that
such Stock Option, to the extent then exercisable, may be exercised for the
period of ninety (90) days commencing with the date of such Termination of
Employment or until the expiration of the Option Period, whichever period is
shorter. Unless otherwise provided in an Agreement or determined by the
Committee, if the Participant incurs a Termination of Employment which is either
(a) voluntary on the part of the Participant (and is not due to Retirement) or
(b) with Cause, the Option shall terminate immediately. The death or Disability
of a Participant after a Termination of Employment otherwise provided herein
shall not extend the time permitted to exercise an Option.
6.7 Cashing Out of Option. On receipt of written notice of exercise, the
Committee may elect to cash out all or part of any exercised Stock Option with
respect to which at least six months have elapsed since the Grant Date (such
limitation shall not apply to an Option granted to a Participant who has
subsequently died), by paying the Participant an amount, in cash or Common
Stock, equal to the excess of the Fair Market Value of the Common Stock that is
subject to the Option over the Option Price, times the number of shares of
Common Stock subject to the Option on the effective date of such cash-out.
ARTICLE VII
-----------
PERFORMANCE OPTIONS
-------------------
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The right of a Participant to exercise or receive a grant or settlement of
any Option, and its timing, may be subject to performance conditions specified
by the Committee. The Committee may use business criteria and other measures of
performance it deems appropriate in establishing any performance conditions, and
may exercise its discretion to reduce or increase the amounts payable under any
Option subject to performance conditions.
ARTICLE VIII
------------
PROVISIONS APPLICABLE TO STOCK ACQUIRED UNDER THE PLAN
------------------------------------------------------
8.1 Limited Transfer During Offering. In the event there is an effective
registration statement under the Securities Act pursuant to which shares of
Common Stock shall be offered for sale in an underwritten offering, a
Participant shall not, during the period requested by the underwriters managing
the registered public offering, effect any public sale or distribution of shares
received directly or indirectly pursuant to an exercise of any Option.
8.2 Committee Discretion. The Committee may, in its sole discretion,
include in any Agreement an obligation that the Company purchase a Participant's
shares of Common Stock received upon the exercise of an Option (including the
purchase of any unexercised Options which have not expired), or may obligate a
Participant to sell shares of Common Stock to the Company, upon such terms and
conditions as the Committee may determine and set forth in an Agreement. The
provisions of this Section 8.2 shall be construed by the Committee in its sole
discretion, and shall be subject to such other terms and conditions as the
Committee may from time to time determine. Notwithstanding any provision herein
to the contrary, the Company may, upon determination by the Committee, assign
its right to purchase shares of Common Stock under this Section 8.2, whereupon
the assignee of such right shall have all the rights, duties and obligations of
the Company with respect to purchase of the shares of Common Stock.
8.3 No Company Obligation. None of the Company, an Affiliate or the
Committee shall have any duty or obligation to disclose affirmatively to a
record or beneficial holder of Common Stock or an Option, and such holder shall
have no right to be advised of, any material information regarding the Company
or any Affiliate at any time prior to, upon or in connection with receipt or the
exercise of an Option or the Company's purchase of Common Stock or an Option
from such holder in accordance with the terms hereof.
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ARTICLE IX
----------
CHANGE IN CONTROL PROVISIONS
----------------------------
9.1 Impact of Event. Notwithstanding any other provision of the Plan to
the contrary, unless otherwise provided in an Agreement, in the event of a
Change in Control (as defined in Section 9.2):
(a) Any Stock Options outstanding as of the date such Change in
Control and not then exercisable shall become fully exercisable to the full
extent of the original grant;
(b) The performance goals and other conditions with respect to any
outstanding Performance Option shall be deemed to have been satisfied in
full, and such Option shall be fully distributable, if and to the extent
provided by the Committee in the Agreement relating to such Option or
otherwise.
(c) Notwithstanding any other provision of the Plan, unless the
Committee shall provide otherwise in an Agreement, a Participant shall have
the right, whether or not the Option is fully exercisable or may be
otherwise realized by the Participant, by giving notice during the 60-day
period from and after a Change in Control to the Company, to elect to
surrender all or part of the Option to the Company and to receive cash,
within 30 days of such notice, in an amount equal to the amount by which
the "Change in Control Price" (as defined in Section 9.3) per share of
Common Stock on the date of such election shall exceed the amount which the
Participant must pay to exercise the Option per share of Common Stock under
the Option (the "Spread"), multiplied by the number of shares of Common
Stock granted under the Option as to which the right granted under this
Section 9.1 shall have been exercised.
9.2 Definition of Change in Control. For purposes of this Plan, a "Change
in Control" shall be deemed to have occurred if (a) any corporation, person or
other entity (other than the Company, a majority-owned subsidiary of the Company
or any of its subsidiaries, or an employee benefit plan (or related trust)
sponsored or maintained by the Company), including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the
beneficial owner of stock representing more than the greater of (i) twenty-five
percent (25%) of the combined voting power of the Company's then outstanding
securities or (ii) the percentage of the combined voting power of the Company's
then outstanding securities which equals (A) ten percent (10%) plus (B) the
percentage of the combined voting power of the Company's outstanding securities
held by such corporation, person or entity on the Effective Date; (b)(i) the
stockholders of the Company approve a definitive agreement to merge or
consolidate the Company with or into another corporation other than a majority-
owned subsidiary of the Company, or to sell or otherwise dispose of all or
substantially all of the Company's assets, and (ii) the persons who were the
members
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of the Board of Directors of the Company prior to such approval do not represent
a majority of the directors of the surviving, resulting or acquiring entity or
the parent thereof; (c) the stockholders of the Company approve a plan of
liquidation of the Company; or (d) within any period of 24 consecutive months,
persons who were members of the Board of Directors of the Company immediately
prior to such 24-month period, together with any persons who were first elected
as directors (other than as a result of any settlement of a proxy or consent
solicitation contest or any action taken to avoid such a contest) during such
24-month period by or upon the recommendation of persons who were members of the
Board of Directors of the Company immediately prior to such 24-month period and
who constituted a majority of the Board of Directors of the Company at the time
of such election, cease to constitute a majority of the Board.
9.3 Change in Control Price. For purposes of the Plan, "Change in
Control Price" means the higher of (a) the highest reported sales price of a
share of Common Stock in any transaction reported on the principal exchange on
which such shares are listed or on NASDAQ during the 60-day period prior to and
including the date of a Change in Control or (b) if the Change in Control is the
result of a tender or exchange offer, merger, consolidation, liquidation or sale
of all or substantially all of the assets of the Company (in each case a
"Corporate Transaction"), the highest price per share of Common Stock paid in
such Corporate Transaction. To the extent that the consideration paid in any
such Corporate Transaction consists all or in part of securities or other non-
cash consideration, the value of such securities or other non-cash consideration
shall be determined in the sole discretion of the Committee.
ARTICLE X
---------
MISCELLANEOUS
-------------
10.1 Amendments and Termination. The Board may amend, alter or
discontinue the Plan at any time, but no amendment, alteration or
discontinuation shall be made which would impair the rights of a Participant
under a Stock Option theretofore granted without the Participant's consent.
The Committee may amend the Plan at any time provided that (a) no amendment
shall impair the rights of any Participant under any Option theretofore granted
without the Participant's consent, and (b) any amendment shall be subject to the
approval or rejection of the Board.
The Committee may amend the terms of any Option theretofore granted,
prospectively or retroactively, but no such amendment shall impair the rights of
any Participant without the Participant's consent or reduce an Option Price.
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Subject to the above provisions, the Board shall have authority to amend
the Plan to take into account changes in law and tax and accounting rules, as
well as other developments, and to grant Options which qualify for beneficial
treatment under such rules without stockholder approval. Notwithstanding
anything in the Plan to the contrary, if any right under this Plan would cause a
transaction to be ineligible for pooling of interests accounting that would, but
for the right hereunder, be eligible for such accounting treatment, the
Committee may modify or adjust the right so that pooling of interests accounting
shall be available, including the substitution of Common Stock having a Fair
Market Value equal to the cash otherwise payable hereunder for the right which
caused the transaction to be ineligible for pooling of interests accounting.
10.2 Stand-Alone, Additional, Tandem and Substitute Options. Options
granted under the Plan may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in substitution or exchange
for, any other Option or any award granted under another plan of the Company,
any subsidiary, or any business entity to be acquired by the Company or a
subsidiary, or any other right of a Participant to receive payment from the
Company or any subsidiary. Such additional, tandem, and substitute or exchange
Options may be granted at any time. If an Option is granted in substitution or
exchange for another Option or award, the Committee shall require the surrender
of such other Option or award in consideration for the grant of the new Option.
In addition, Options may be granted in lieu of cash compensation, including in
lieu of cash amounts payable under other plans of the Company or any subsidiary,
in which the Fair Market Value of Common Stock subject to the Option is
equivalent in value to the cash compensation, or in which the exercise price of
the Option is equal to the Fair Market Value of the underlying Common Stock
minus the value of the cash compensation surrendered.
10.3 Form and Timing of Payment Under Options; Deferrals. Subject to the
terms of the Plan and any applicable Agreement, payments to be made by the
Company or an Affiliate upon the exercise of an Option or settlement of an
Option may be made in such forms as the Committee shall determine, including,
without limitation, cash, Common Stock, other Options or other property, and may
be made in a single payment or transfer, in installments, or on a deferred
basis. The settlement of any Option may be accelerated, and cash paid in lieu of
Common Stock in connection with such settlement, in the discretion of the
Committee or upon occurrence of one or more specified events (in addition to a
Change in Control). Installment or deferred payments may be required by the
Committee (subject to Section 10.1 of the Plan) or permitted at the election of
the Participant. Payments may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or deferred payments
or the granting or crediting of dividend equivalents in respect of installment
or deferred payments denominated in Common Stock.
10.4 Unfunded Status of Plan; Limits on Transferability. It is intended
that the Plan be an "unfunded" plan for incentive and deferred compensation. The
Committee
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may authorize the creation of trusts or other arrangements to meet the
obligations created under the Plan to deliver Common Stock or make payments;
provided, however, that, unless the Committee otherwise determines, the
existence of such trusts or other arrangements is consistent with the "unfunded"
status of the Plan. Unless otherwise provided in this Plan or in an Agreement,
no Option shall be subject to the claims of Participant's creditors, and no
Option may be transferred, assigned, alienated or encumbered in any way other
than by will or the laws of descent and distribution or to a Representative upon
the death of the Participant.
10.5 General Provisions.
(a) Representation. The Committee may require each person purchasing
or receiving shares pursuant to an Option to represent to and agree with
the Company in writing that such person is acquiring the shares without a
view to the distribution thereof. The certificates for such shares may
include any legend which the Committee deems appropriate to reflect any
restrictions on transfer.
(b) No Additional Obligation. Nothing contained in the Plan shall
prevent the Company or an Affiliate from adopting other or additional
compensation arrangements for its employees.
(c) Withholding. No later than the date as of which an amount first
becomes includible in the gross income of the Participant for Federal
income tax purposes with respect to any Option, the Participant shall pay
to the Company (or other entity identified by the Committee), or make
arrangements satisfactory to the Company or other entity identified by the
Committee regarding the payment of, any Federal, state, local or foreign
taxes of any kind required by law to be withheld with respect to such
amount required in order for the Company or an Affiliate to obtain a
current deduction. Unless otherwise determined by the Committee,
withholding obligations may be settled with Common Stock, including Common
Stock that is part of the Option that gives rise to the withholding
requirement, provided that any applicable requirements under Section 16 of
the Exchange Act are satisfied. The obligations of the Company under the
Plan shall be conditional on such payment or arrangements, and the Company
and its Affiliates shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment otherwise due to the Participant.
(d) Representation. The Committee shall establish such procedures as
it deems appropriate for a Participant to designate a Representative to
whom any amounts payable in the event of the Participant's death are to be
paid.
(e) Controlling Law. The Plan and all Options made and actions taken
thereunder shall be governed by, and construed in accordance with, the laws
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of the State of Illinois (other than its law respecting choice of law),
except to the extent the General Corporation Law of the State of Delaware
would be mandatorily applicable. The Plan shall be construed to comply with
all applicable law and to avoid liability to the Company, an Affiliate or a
Participant, including, without limitation, liability under Section 16(b)
of the Exchange Act.
(f) Offset. Any amounts owed to the Company or an Affiliate by the
Participant of whatever nature may be offset by the Company from the value
of any shares of Common Stock, cash or other thing of value under this Plan
or an Agreement to be transferred to the Participant, and no shares of
Common Stock, cash or other thing of value under this Plan or an Agreement
shall be transferred unless and until all disputes between the Company and
the Participant have been fully and finally resolved and the Participant
has waived all claims to such against the Company or an Affiliate.
(g) Fail Safe. With respect to persons subject to Section 16 of the
Exchange Act, transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3. To the extent any transaction under
the Plan or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee. The Committee may authorize the repurchase of any Option or
shares of Common Stock resulting from any Option in order to prevent a
person from incurring or potentially incurring liability under Section
16(b) of the Exchange Act.
10.6 Mitigation of Excise Tax. If any payment or right accruing to a
Participant under this Plan (without the application of this Section 10.6),
either alone or together with other payments or rights accruing to the
Participant from the Company or an Affiliate ("Total Payments"), would
constitute a "parachute payment" (as defined in Section 280G of the Code and
regulations thereunder), such payment or right shall be reduced to the largest
amount or greatest right that will result in no portion of the amount payable or
right accruing under the Plan being subject to an excise tax under Section 4999
of the Code or being disallowed as a deduction under Section 280G of the Code.
The determination of whether any reduction in the rights or payments under this
Plan is to apply shall be made by the Committee in good faith after consultation
with the Participant, and such determination shall be conclusive and binding on
the Participant. The Participant shall cooperate in good faith with the
Committee in making such determination and providing the necessary information
for this purpose. The foregoing provisions of this Section 10.6 shall apply with
respect to any person only if, after reduction for any applicable Federal excise
tax imposed by Section 4999 of the Code and Federal income tax imposed by the
Code, the Total Payments accruing to such person would be less than the amount
of the Total Payments as reduced, if applicable, under the foregoing provisions
of the Plan and after reduction for only Federal income taxes.
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10.7 Rights with Respect to Continuance of Employment. Nothing contained
herein shall be deemed to alter the relationship between the Company or an
Affiliate and a Participant, or the contractual relationship between a
Participant and the Company or an Affiliate if there is a written contract
regarding such relationship. Nothing contained herein shall be construed to
constitute a contract of employment between the Company or an Affiliate and a
Participant. The Company or an Affiliate and each of the Participants continue
to have the right to terminate the employment or service relationship at any
time for any reason, except as provided in a written contract. The Company or an
Affiliate shall have no obligation to retain the Participant in its employ or
service as a result of this Plan. There shall be no inference as to the length
of employment or service hereby, and the Company or an Affiliate reserves the
same rights to terminate the Participant's employment or service as existed
prior to the individual's becoming a Participant in this Plan.
10.8 Options in Substitution for Options Granted by Other Corporations.
Options (including cash in respect of fractional shares) may be granted under
the Plan from time to time in substitution for awards held by employees,
directors or service providers of other corporations who are about to become
officers, directors or employees of the Company or an Affiliate as the result of
a merger or consolidation of the employing corporation with the Company or an
Affiliate, or the acquisition by the Company or an Affiliate of the assets of
the employing corporation, or the acquisition by the Company or Affiliate of the
stock of the employing corporation, as the result of which it becomes a
designated employer under the Plan. The terms and conditions of the Options so
granted may vary from the terms and conditions set forth in this Plan at the
time of such grant as the majority of the members of the Committee may deem
appropriate to conform, in whole or in part, to the provisions of the awards in
substitution for which they are granted.
10.9 Procedure for Adoption. Any Affiliate of the Company may by
resolution of such Affiliate's board of directors, with the consent of the Board
of Directors and subject to such conditions as may be imposed by the Board of
Directors, adopt the Plan for the benefit of its employees as of the date
specified in the board resolution.
10.10 Procedure for Withdrawal. Any Affiliate which has adopted the Plan
may, by resolution of the board of directors of such Affiliate, with the consent
of the Board of Directors and subject to such conditions as may be imposed by
the Board of Directors, terminate its adoption of the Plan.
10.11 Delay. If at the time a Participant incurs a Termination of
Employment (other than due to Cause) or if at the time of a Change in Control,
the Participant is subject to "short-swing" liability under Section 16 of the
Exchange Act, any time period provided for under the Plan or an Agreement to the
extent necessary to avoid the imposition of liability shall be suspended and
delayed during the period the Participant would be subject to such liability,
but not more than six (6) months and one (1) day and not to exceed the Option
Period, whichever is shorter. The Company shall
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have the right to suspend or delay any time period described in the Plan or an
Agreement if the Committee shall determine that the action may constitute a
violation of any law or result in liability under any law to the Company, an
Affiliate or a stockholder of the Company until such time as the action required
or permitted shall not constitute a violation of law or result in liability to
the Company, an Affiliate or a stockholder of the Company.
10.12 Headings. The headings contained in this Plan are for reference
purposes only and shall not affect the meaning or interpretation of this Plan.
10.13 Severability. If any provision of this Plan shall for any reason be
held to be invalid or unenforceable, such invalidity or unenforceability shall
not effect any other provision hereby, and this Plan shall be construed as if
such invalid or unenforceable provision were omitted.
10.14 Successors and Assigns. This Plan shall inure to the benefit of and
be binding upon each successor and assign of the Company. All obligations
imposed upon a Participant, and all rights granted to the Company hereunder,
shall be binding upon the Participant's heirs, legal representatives and
successors.
10.15 Entire Agreement. This Plan and the Agreement constitute the entire
agreement with respect to the subject matter hereof and thereof, provided that
in the event of any inconsistency between the Plan and the Agreement, the terms
and conditions of this Plan shall control.
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EXHIBIT 5
November 19, 1998
PLATINUM technology, inc.
1815 South Meyers Road
Oakbrook Terrace, Illinois 60181
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have represented 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 "Act").
The Registration Statement relates to 15,000,000 shares (the "Shares") of the
Company's Common Stock, $.001 par value per share ("Common Stock"), issuable
upon exercise of options under the PLATINUM technology, inc. Broad Based Stock
Option Plan (the "Broad Based Plan").
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 (a) the Registration
Statement, (b) the Restated Certificate of Incorporation of the Company, as
amended, (c) the Bylaws of the Company, (d) records of proceedings and actions
of the Company's Board of Directors, and (e) the Broad Based Plan.
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 due authority of the parties signing such documents, 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, it is our opinion that the Shares,
when issued by the Company in accordance with the terms of the Broad Based Plan,
will be validly issued, fully paid and non-assessable shares of Common Stock.
<PAGE>
PLATINUM technology, inc.
November 19, 1998
Page 2
Our opinion expressed above is limited to the General Corporation Law of
the State of Delaware, and we do not express any opinion concerning any other
laws. 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 filing of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent we do not thereby admit that we
are included in the category of persons whose consent is required under Section
7 of the Act or the related rules and regulations promulgated thereunder.
Very truly yours,
/s/ KATTEN MUCHIN & ZAVIS
KATTEN MUCHIN & ZAVIS
<PAGE>
Exhibit 15
ACKNOWLEDGEMENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
REGARDING INDEPENDENT AUDITORS' REVIEW REPORT
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 July
14, 1998 and November 12, 1998 related to our reviews of interim financial
information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered a 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.
Very truly yours,
/s/KPMG Peat Marwick LLP
Chicago, Illinois
November 17, 1998
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
PLATINUM technology, inc.:
We consent to the use of our reports dated May 28, 1998, relating to the
consolidated balance sheets of PLATINUM technology, inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1997, and the related financial statement
schedule, incorporated by reference in this registration statement on Form S-8
from PLATINUM technology, inc.'s Current Report on Form 8-K dated August 4,
1998. Our reports were based in part on the reports of other auditors.
/s/KPMG Peat Marwick LLP
Chicago, Illinois
November 17, 1998
<PAGE>
Exhibit 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 (expected to be filed by
PLATINUM technology, inc. on November 18, 1998) of our report dated January 19,
1998 for Mastering, Inc. included in PLATINUM technology, inc.'s Current Report
on Form 8-K dated August 4, 1998 and to all references to our Firm included in
this registration statement.
/S/ Arthur Andersen LLP
Denver, Colorado,
November 17, 1998
<PAGE>
Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the PLATINUM technology, inc. Broad Based Stock
Option Plan, of our report dated February 10, 1998, except for Note 14, as to
which the date is March 14, 1998, with respect to the consolidated financial
statements of Logic Works, Inc. for the three years ended December 31, 1997
included in the Current Report (Form 8-K) of PLATINUM technology, inc., filed
with the Securities and Exchange Commission on August 4, 1998.
/s/ Ernst & Young LLP
Princeton, New Jersey
November 17, 1998
