<PAGE>
As filed with the Securities and Exchange Commission on January 29, 1998
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)
VAYDA CONSULTING 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
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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
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value (including
preferred stock purchase rights)(2).......... 67,936 shares(2) $9.13(3) $620,256(3) $183
====================================================================================================================================
</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
Vayda Consulting Inc. 1995 Stock Option Plan (the "Plan").
(3) The amounts are based upon the weighted average exercise price of the 67,936
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.
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<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 Vayda Consulting 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 November 26, 1997, by and
among the Company, VCI Acquisition Corp. and Vayda Consulting Inc. and certain
of the shareholders of Vayda Consulting Inc. Options previously issued under the
Plan converted into options to purchase the Company's Common Stock, par value
$.001 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 Company's annual report on Form 10-K, for the year ended December
31, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ending
March 31, 1997, June 30, 1997 and September 30, 1997;
3. The Company's Current Reports on Form 8-K, dated February 12, 1997,
March 11, 1997, October 17, 1997, December 11, 1997 and January 27,
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 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 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,
II-1
<PAGE>
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 Vayda Consulting 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).
15 Acknowledgment of Certified Public Accountants Regarding Independent
Auditors' Review Reports.
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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 Arthur Andersen LLP with respect to the financial
statements of Locus Computing Corporation.
23.4 Consent of Arthur Andersen LLP with respect to the financial
statements of Softool Corporation.
23.5 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;
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.
II-3
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(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 26th
day of January, 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. Friedman 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 this 26th day of January, 1998.
<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/ ARTHUR P. FRIGO Director
- -------------------------
Arthur P. Frigo
Director
- -------------------------
Gian M. Fulgoni
</TABLE>
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<TABLE>
<CAPTION>
Sequential
Exhibits Description Page No.
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<C> <S> <C>
4.1 Vayda Consulting 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 Acknowledgement of Certified Public Accountants Regarding Independent Auditor's
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 Arthur Andersen LLP with respect to the financial statements of Locus
Computing Corporation.
23.4 Consent of Arthur Andersen LLP with respect to the financial statements of Softool
Corporation.
=================================================================================================================
</TABLE>
<PAGE>
EXHIBIT 4.1
VAYDA CONSULTING, INC.
1995 STOCK OPTION PLAN
1. PURPOSE. This 1995 Stock Option Plan/1/ ("Plan") is established as a
compensatory plan to attract, retain and provide equity incentives to selected
persons to promote the financial success of Vayda Consulting, Inc., a California
corporation (the "Company"). Capitalized terms not previously defined herein are
defined in Section 17 of this Plan.
2. TYPES OF OPTIONS AND SHARES. Options granted under this Plan (the
"Options") may be either (a) incentive stock options ("ISOs") within the meaning
of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
(b) nonqualified stock options ("NQSOs"), as designated at the time of grant.
The shares of stock that may be purchased upon exercise of Options granted under
this Plan (the "Shares") are shares of Common Stock of the Company ("Common
Stock").
3. NUMBER OF SHARES. The aggregate number of Shares that may be issued
pursuant to Options granted under this Plan is 3,000 Shares, subject to
adjustment as provided in this Plan. If any Option expires or is terminated
without being exercised in whole or in part, the unexercised or released Shares
from such Option shall be available for future grant and purchase under this
Plan. At all times during the term of this Plan, the Company shall reserve and
keep available such number of Shares as shall be required to satisfy the
requirements of outstanding Options under this Plan.
4. ELIGIBILITY.
(a) General Rules of Eligibility. Options may be granted to
employees, officers, directors, consultants, independent contractors and
advisors (provided such consultants, contractors and advisors render bona fide
services not in connection with the offer and sale of securities in a
capital-raising transaction) of the Company or any Parent, Subsidiary or
Affiliate of the Company. ISOs may be granted only to employees (including
officers and directors who are also employees) of the Company or a Parent or
Subsidiary of the Company. The Committee (as defined in Section 14) in its sole
discretion shall select the recipients of Options ("Optionees"). An Optionee may
be granted more than one Option under this Plan.
(b) Company Assumption of Options. The Company may also, from time to
time, assume outstanding options granted by another company, whether in
connection with an acquisition of such other company or otherwise, by either (i)
granting an Option under this Plan in replacement of the option assumed by the
Company, or (ii) treating the assumed option as if it had been granted under
this Plan if the terms of such assumed option could be
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/1/Approved by the Company's Board of Directors and shareholders on November 17,
1995.
<PAGE>
applied to an option granted under this Plan. Such assumption shall be
permissible if the holder of the assumed option would have been eligible to be
granted an option hereunder if the other company had applied the rules of this
Plan to such grant.
5. TERMS AND CONDITIONS OF OPTIONS. The Committee shall determine
whether each Option is to be an ISO or an NQSO, the number of Shares subject to
the Option, the exercise price of the Option, the period during which the Option
may be exercised, and all other terms and conditions of the Option, subject to
the following:
(a) Form of Option Grant. Each Option granted under this Plan shall
be evidenced by a written Stock Option Grant (the "Grant") in substantially the
form attached hereto as Exhibit A or such other form as shall be approved by the
Committee.
(b) Date of Grant. The date of grant of an Option shall be the date
on which the Committee makes the determination to grant such Option unless
otherwise specified by the Committee and subject to applicable provisions of the
Code. The Grant representing the Option will be delivered to the Optionee with a
copy of this Plan within a reasonable time after the date of grant; provided,
however, that if, for any reason, including a unilateral decision by the Company
not to execute an agreement evidencing such option, a written Grant is not
executed within sixty (60) days after the date of grant, such option shall be
deemed null and void. No Option shall be exercisable until such Grant is
executed by the Company and the Optionee.
(c) Exercise Price. The exercise price of an NQSO shall be not less
than eighty-five percent (85%) of the Fair Market Value of the Shares on the
date the Option is granted. The exercise price of an ISO shall not be less than
one hundred percent (100%) of the Fair Market Value of the Shares on the date
the Option is granted. The exercise price of any Option granted to a person
owning more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary of the Company ("Ten
Percent Shareholders") shall not be less than one hundred ten percent (110%) of
the Fair Market Value of the Shares on the date the Option is granted.
(d) Exercise Period. Options shall be exercisable within the times
or upon the events determined by the Committee as set forth in the Grant;
provided, however, that each Option must become exercisable at a rate of at
least twenty percent (20%) per year over five (5) years from the date the Option
is granted; provided further, that no Option shall be exercisable after the
expiration of ten (10) years from the date the Option is granted; and provided
further, that no ISO granted to a Ten Percent Shareholder shall be exercisable
after the expiration of five (5) years from the date the Option is granted.
(e) Limitations on Options. The aggregate Fair Market Value
(determined as of the time an Option is granted) of stock with respect to which
ISOs are exercisable for the first time by an Optionee during any calendar year
(under this Plan or under any other incentive stock option plan of the Company
or any Parent or Subsidiary of the Company) shall not exceed one hundred
thousand dollars ($100,000). To the extent that the Fair Market Value of stock
with respect to which ISOs are exercisable for the first time by an Optionee
during any calendar year exceeds $100,000, the Options for the first $100,000
worth of
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stock to become exercisable in such year shall be ISOs and the Options for the
amount in excess of $100,000 that becomes exercisable in that year shall be
NQSOs. In the event that the Code or the regulations promulgated thereunder are
amended after the effective date of this Plan to provide for a different limit
on the Fair Market Value of Shares permitted to be subject to ISOs, such
different limit shall be incorporated herein and shall apply to any Options
granted after the effective date of such amendment. In addition, the number of
Shares(i) subject to Options granted under this Plan, and (ii) issued upon
exercise of an Option granted under this Plan for any Optionee may not exceed,
in the aggregate, 500,000. In the event Section 162(m) of the Code or any
proposed or final regulations promulgated thereunder are amended after the
effective date of this Plan to eliminate the requirement of a per Optionee limit
on the number of Options which may be granted, then the restriction in the
immediately preceding sentence shall not apply to any Options granted after the
effective date of such amendment.
(f) Options Non-Transferable. Options granted under this Plan, and
any interest therein, shall not be transferable or assignable by the Optionee,
and may not be made subject to execution, attachment or similar process,
otherwise than by will or by the laws of descent and distribution and shall be
exercisable during the lifetime of the Optionee only by the Optionee or any
permitted transferee.
(g) Assumed Options. In the event the Company assumes an option
granted by another company in accordance with Section 4(b) above, the terms and
conditions of such Option shall remain unchanged (except the exercise price and
the number and nature of shares issuable upon exercise, which will be adjusted
appropriately pursuant to Section 424 of the Code and the Treasury Regulations
applicable thereto). In the event the Company elects to grant a new Option
rather than assuming an existing option (as specified in Section 4), such new
Option need not be granted at Fair Market Value on the date of grant and may
instead be granted with a similarly adjusted exercise price.
6. EXERCISE OF OPTIONS.
(a) Notices. Options may be exercised only by delivery to the
Company of a written exercise agreement in a form approved by the Committee
(which need not be the same for each Optionee), stating the number of Shares
being purchased, the restrictions imposed on the Shares, if any, and such
representations and agreements regarding the Optionee's investment intent and
access to information, if any, as may be required by the Company to comply with
applicable securities laws, together with payment in full of the exercise price
for the number of Shares being purchased.
(b) Payment. Payment for the Shares may be made in cash (by check)
or, where approved by the Committee in its sole discretion at the time of grant
and where permitted by law: (i) by cancellation of indebtedness of the Company
to the Optionee; (ii) by surrender of shares of Common Stock of the Company
already owned by the Optionee, having a Fair Market Value equal to the exercise
price of the Option; (iii) by waiver of compensation due or accrued to Optionee
for services rendered; (iv) through delivery of a promissory note for the full
exercise price bearing interest at such rate with the note due at such time, on
a secured or unsecured basis,
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<PAGE>
as determined by the Committee; (v) through a guaranty by the Company of a loan
to the Optionee by a third party of all or part of the option price (but not
more than the option price), and such guaranty may be on an unsecured or secured
basis as the Committee shall approve (including, without limitation, by a
security interest in the shares of the Company); (vi) provided that a public
market for the Company's stock exists, through a "same day sale" commitment from
the Optionee and a broker-dealer that is a member of the National Association of
Securities Dealers, Inc.(an "NASD Dealer") whereby the Optionee irrevocably
elects to exercise the Option and to sell a portion of the Shares so purchased
to pay for the exercise price and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the exercise price directly to the
Company; (vii) provided that a public market for the Company's stock exists,
through a "margin" commitment from the Optionee and an NASD Dealer whereby the
Optionee irrevocably elects to exercise the Option and to pledge the Shares so
purchased to the NASD Dealer in a margin account as security for a loan from the
NASD Dealer in the amount of the exercise price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the exercise price
directly to the Company; or (viii) by any combination of the foregoing.
(c) Withholding Taxes. Prior to issuance of the Shares upon exercise
of an Option, the Optionee shall pay or make adequate provision for any federal
or state withholding obligations of the Company, if applicable. Where approved
by the Committee in its sole discretion, the Optionee may provide for payment of
withholding taxes upon exercise of the Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld. In such case, the Company shall issue the net number of
Shares to the Optionee by deducting the Shares retained from the Shares
exercised. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is determined in
accordance with Section 83 of the Code (the "Tax Date"). All elections by
Optionees to have Shares withheld for this purpose shall be made in writing in a
form acceptable to the Committee and shall be subject to the following
restrictions:
(i) the election must be made on or prior to the applicable Tax
Date;
(ii) once made, the election shall be irrevocable as to the
particular Shares as to which the election is made;
(iii) all elections shall be subject to the consent or
disapproval of the Committee;
(iv) if the Optionee is an officer or director of the Company or
other person (in each case, an "Insider") whose transactions in the Company's
Common Stock are subject to Section 16(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and if the Company is subject to Section
16(b) of the Exchange Act, the election must be made at least (6) months prior
to the Tax Date and must otherwise comply with Rule 16b-3 as promulgated by the
Securities and Exchange Commission ("Rule 16b-3").
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<PAGE>
(d) Limitations on Exercise. Notwithstanding anything else to the
contrary in the Plan or any Grant, no Option may be exercisable later than the
expiration date of the Option.
7. RESTRICTIONS ON SHARES. At the discretion of the Committee, the
Company may reserve to itself and/or its assignee(s) in the Grant (a) a right of
first refusal to purchase all Shares that an Optionee (or a subsequent
transferee) may propose to transfer to a third party and/or (b) for so long as
the Company's stock is not publicly traded, a right to repurchase a portion of
or all Shares held by an Optionee upon the Optionee's termination of employment
or service with the Company or its Parent, Subsidiary or Affiliate of the
Company for any reason within a specified time as determined by the Committee at
the time of grant at the higher of (i) the Optionee's original purchase price,
(ii) the Fair Market Value of such Shares, or (iii) a price determined by a
formula or other provisions set forth in the Grant. The terms of such a right of
repurchase shall conform to Section 260.140.41(k) of the California Corporations
Commissioner's Rules, or any successor rule.
8. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS. The Committee
shall have the power to modify, extend or renew outstanding Options and to
authorize the grant of new Options in substitution therefor, provided that any
such action may not, without the written consent of the Optionee, impair any
rights under any Option previously granted. Any outstanding ISO that is
modified, extended, renewed or otherwise altered shall be treated in accordance
with Section 424(h) of the Code. The Committee shall have the power to reduce
the exercise price of outstanding options; provided, however, that the exercise
price per share may not be reduced below the minimum exercise price that would
be permitted under Section 5(c) of this Plan for options granted on the date the
action is taken to reduce the exercise price.
9. PRIVILEGES OF STOCK OWNERSHIP. No Optionee shall have any of the
rights of a shareholder with respect to any Shares subject to an Option until
such Option is properly exercised. No adjustment shall be made for dividends or
distributions or other rights for which the record date is prior to such date,
except as provided in the Plan. The Company shall provide to each Optionee,
regardless of the reports provided to shareholders in general, a copy of the
annual financial statements of the Company at such time after the close of each
fiscal year of the Company as such statements are released by the Company to its
shareholders.
10. NO OBLIGATION TO EMPLOY: NO RIGHT TO FUTURE GRANTS. Nothing in
this Plan or any Option granted under this Plan shall confer on any Optionee any
right (a) to continue in the employ of, or other relationship with, the Company
or any Parent or Subsidiary of the Company or limit in any way the right to the
Company or any Parent, Subsidiary or Affiliate of the Company to terminate the
Optionee's employment or other relationship at any time, with or without cause,
or (b) to have any Option(s) granted to such Optionee under this Plan, or any
other plan, or to acquire any other securities of the Company, in the future.
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<PAGE>
11. ADJUSTMENT OF OPTION SHARES. In the event that the number of
outstanding shares of Common Stock of the Company is changed by a stock
dividend, stock split, reverse stock split, combination, reclassification or
similar change in the capital structure of the Company without consideration, or
if a substantial portion of the assets of the Company are distributed, without
consideration in a spin-off or similar transaction, to the shareholders of the
Company, the number of Shares available under this Plan and the number of Shares
subject to outstanding Options and the exercise price per share of such Options
shall be proportionately adjusted, subject to any required action by the Board
of Directors (the "Board") or shareholders of the Company and compliance with
applicable securities laws; provided, however, that a fractional share shall not
be issued upon exercise of any Option and any fractions of a Share that would
have resulted shall either be cashed out at Fair Market Value or the number of
Shares issuable under the Option shall be rounded down to the nearest whole
number, as determined by the Committee; and provided further that the exercise
price may not be decreased to below the par value, if any, for the Shares.
12. ASSUMPTION OF OPTIONS BY SUCCESSORS.
(a) In the event of (i) a merger or consolidation in which the
Company is not the surviving corporation (other than a merger or consolidation
with a wholly-owned subsidiary or where there is no substantial change in the
shareholders of the corporation and the Options granted under this Plan are
assumed by the successor corporation), or (ii) the sale of all or substantially
all of the assets of the Company, any or all outstanding Options shall be
assumed by the successor corporation, which assumption shall be binding on all
Optionees, an equivalent option shall be substituted by such successor
corporation or the successor corporation shall provide substantially similar
consideration to Optionees' as was provided to shareholders (after taking into
account the existing provisions of the Optionees' options such as the exercise
price and the vesting schedule), and, in the case of outstanding shares subject
to a repurchase option, issue substantially similar shares or other property
subject to repurchase restrictions no less favorable to the Optionee.
(b) In the event such successor corporation, if any, refuses to
assume or substitute, as provided above, pursuant to an event described in
subsection (a) above, or in the event of a dissolution or liquidation of the
Company, the Options shall, notwithstanding any contrary terms in the Grant,
expire on a date specified in a written notice given by the Committee to the
Optionees specifying the terms and conditions of such termination (which date
shall be at least twenty (20) days after the date the Committee gives the
written notice).
13. ADOPTION AND SHAREHOLDER APPROVAL. This Plan shall become
effective on the date that it is adopted by the Board of Directors of the
Company (the "Board"). This Plan shall be approved by the shareholders of the
Company, in any manner permitted by applicable corporate law, within twelve (12)
months before or after the date this Plan is adopted by the Board. Thereafter,
after the Company becomes subject to Section 16(b) of the Exchange Act, the
Company will comply with the requirements of Rule 16b-3 (or its successor) with
respect to shareholder approval.
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<PAGE>
14. Administration. This Plan may be administered by the Board or a
Committee appointed by the Board (the "Committee"), which term when used in this
Plan shall also include the Board. If, at any time after the Company registers
under the Exchange Act, all of the directors are not Disinterested Persons, the
Board shall appoint a Committee consisting of not less than two directors, each
of whom is a Disinterested Person and at all times during which the Company is
registered under the Exchange Act, the Committee shall be comprised of
Disinterested Persons. As used in this Plan, references to the "Committee" shall
mean either such Committee or the Board if no committee has been established.
The interpretation by the Committee of any of the provisions of this Plan, any
related agreements, or any Option granted under this Plan shall be final and
binding upon the Company and all persons having an interest in any Option or any
Shares purchased pursuant to an Option.
15. Term of Plan. Options may be granted pursuant to this Plan from time
to time prior to November 17, 2005, a date which is less than ten years after
the earlier of the date of approval of this Plan by the Board or the
shareholders of the Company pursuant to Section 13 of this Plan.
16. Amendment or Termination of Plan. The Board or Committee may, at any
time, amend, alter, suspend or discontinue the Plan, but no amendment,
alteration, suspension or discontinuation shall be made which would impair the
rights of any Optionee under any Option theretofore granted, without his or her
consent, or which, without the approval of the shareholders of the Company
would:
(a) except as provided in Section 11 of the Plan, increase the total
number of Shares reserved for the purposes of the Plan;
(b) extend the duration of the Plan;
(c) extend the period during and over which Options may be exercised
under the Plan; or
(d) change the class of persons eligible to receive Options granted
hereunder (except as may be required to comport with changes in the Code, ERISA
or regulations promulgated thereunder).
Without limiting the foregoing, the Board or Committee may at any time or
from time to time authorize the Company, with the consent of the respective
Optionees, to issue new Options in exchange for the surrender and cancellation
of any or all outstanding Options.
17. Certain Definitions. As used in this Plan, the following terms shall
have the following meanings:
(a) "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the Option, each of the corporations other than the Company owns
stock possessing fifty percent
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<PAGE>
(50%) or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
(b) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(c) "Affiliate" means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management and policies of
the corporation, whether through the ownership of voting securities, by contract
or otherwise.
(d) "Disinterested Persons" shall have the meaning set forth in Rule
16b-3(c)(2) as promulgated by the Securities and Exchange Commission under
Section 16(b) of the Exchange Act, as such rule is amended from time to time and
as interpreted by the Securities and Exchange Commission.
(e) "Fair Market Value" shall mean the fair market value of the Shares
as determined by the Committee from time to time in good faith. If a public
market exists for the Shares, the Fair Market Value shall be the average of the
last reported bid and asked prices for Common Stock of the Company on the last
trading day prior to the date of determination or, in the event the Common Stock
of the Company is listed on a stock exchange or is a NASDAQ National Market
security, the Fair Market Value shall be the closing price on such exchange or
quotation system on the last trading day prior to the date of determination.
18. APPLICABLE LAW AND REGULATIONS. The obligations of the Company under
this Plan are subject to the approval of state and federal authorities or
agencies with jurisdiction over the subject matter hereof. The Company shall
not be obligated to issue or deliver shares under this Plan if such issuance or
delivery would violate applicable state or federal securities laws.
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<PAGE>
EXHIBIT 4.2
STOCK OPTION GRANT
------------------
Optionee:
Address:
Total Shares Subject to Option:
Exercise Price Per Share:
Date of Grant:
Expiration Date of Option:
Type of Stock Option: Incentive:
Nonqualified:
1. Grant of Option. Vayda Consulting, Inc., a California corporation (the
"Company"), hereby grants to the optionee named above ("Optionee") an option
(this "Option") to purchase the total number of shares of Common Stock ("Common
Stock") of the Company set forth above (the "Shares") at the exercise price per
share set forth above (the "Exercise Price"), subject to all of the terms and
conditions of this Grant and the Company's 1995 Stock Option Plan, as amended to
the date hereof (the "Plan"). If designated as an Incentive Stock Option above,
this Option is intended to qualify as an "incentive stock option" ("ISO") within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"). Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Plan. [This Stock Option Grant is made
in satisfaction of Section __ of that certain employment agreement by and
between the Company and the Optionee dated as of ____________ __, 199_(the
"Employment Agreement").
2. Exercise Period of Option. The Optionee has option rights hereunder to
purchase a total of _______ Shares which shall become exercisable during the
time periods as set forth in this Section 2. On and after _________ and each of
the first, second, third and fourth anniversary thereof, this Option may be
exercised by the Optionee for the purchase of one-fifth of the Shares covered by
this Option (__________ Shares), or any portion thereof. Once a portion of this
Option becomes exercisable it shall remain exercisable until the Expiration
Date, or until it terminates pursuant to the terms of Section 4 thereof,
whichever is first to occur.
<PAGE>
Notwithstanding the above, (i) minimum number of Shares that may be purchased
upon any partial exercise of the Option is five (5) shares, and (ii) this Option
shall expire on the Expiration Date set forth above and must be exercised, if at
all, on or before the Expiration Date. The portion of Shares as to which an
Option is exercisable in accordance with the above schedule as of the applicable
dates shall be deemed "Vested Options."
3. Restriction on Exercise. This Option may not be exercised unless such
exercise is in compliance with the Securities Act of 1933, as amended, and all
applicable state securities laws, as they are in effect on the date of exercise,
and the requirements of any stock exchange or over-the-counter market on which
the Company's Common Stock may be listed or quoted at the time of exercise.
Optionee understands that the Company is under no obligation to register,
qualify or list the Shares with the Securities and Exchange Commission, any
state securities commission or any stock exchange to effect such compliance.
4. Termination of Option. Except as provided below in this Section 4, this
Option shall terminate and may not be exercised if Optionee ceases to be
employed by, or provide services to, the Company or by any Parent or Subsidiary
of the Company (or, in the case of a nonqualified stock option, by or to any
Affiliate of the Company). Optionee shall be considered to be employed by the
Company for all purposes under this Section 4 if Optionee is an officer,
director or full-time employee of the Company or any Parent, Subsidiary or
Affiliate of the Company or if the Committee determines that Optionee is
rendering substantial services as a part-time employee, consultant, contractor
or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company,
The Committee shall have discretion to determine whether Optionee has ceased
to be employed by the Company or any Parent, Subsidiary or Affiliate of the
Company and the effective date on which such employment terminated (the
"Termination Date").
(a) Termination Generally. If Optionee ceases to be employed by the
Company and all Parents, Subsidiaries or Affiliates of the Company for any
reasons except death or disability, the vested Options, to the extent (and only
to the extent) exercisable by Optionee on the Termination Date, may be exercised
by Optionee, but only within thirty (30) days after the Termination Date;
provided that this Option may not be exercised in any event after the Expiration
Date.
(b) Death or Disability. If Optionee's employment with the Company and
all Parents, Subsidiaries and Affiliates of the Company is terminated because of
the death of Optionee or the disability of Optionee within the meaning of
Section 22(e)(3) of the Code, the Vested Options, to the extent (and only to the
extent) exercisable by Optionee on the Termination Date, may be exercised by
Optionee (or Optionee's legal representative), but only within twelve (12)
months after the Termination Date; provided that this Option may not be
exercised in any event later than the Expiration Date. If Optionee's employment
with the company and all Parents, Subsidiaries and Affiliates of the Company is
terminated because of disability of Optionee which is not permanent and total
disability within the meaning of Section 22(e)(3) of the Code, this Option, to
the extent (and only to the extent) that it would have been exercisable by
Optionee on the Termination Date, may be exercised by Optionee (or Optionee's
legal
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<PAGE>
representative, but only within six(6) months after the Termination Date,
provided that this Option may not be exercised in any event later than the
Expiration Date. In such case, if Optionee fails to exercise this Option within
the first three (3) months of such six (6) month period, this Option will no
longer qualify as an ISO (even if is designated an ISO on page 1 of this Grant.)
(c) No Right to Employment. Nothing in the Plan or this Grant shall
confer on Optionee any right to continue in the employ of, or other relationship
with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit
in any way the right of the Company or any Parent, Subsidiary or Affiliate of
the Company to terminate Optionee's employment or other relationship at any
time, with or without cause.
5. Manner of Exercise.
(a) Exercise Agreement. This Option shall be exercisable by delivery
to the Company of an executed written Stock Option Exercise Agreement in the
form attached hereto as Exhibit 1, or in such other form as may be approved by
the Company, which shall set forth Optionee's election to exercise some or all
of this Option, the number of Shares being purchased, any restrictions imposed
on the Shares and such other representations and agreements as may be required
by the Company to comply with applicable laws.
(b) Exercise Price. The Stock Option Exercise Agreement shall be
accompanied by full payment of the Exercise Price for the Shares being
purchased. Payment for the Shares may be made in cash (by check), or, where
permitted by law, by any of the following methods approved by the Committee at
the date of grant of this Option, or any combinations thereof:
[_] by cancellation of indebtedness of the Company to the
Optionee;
[_] by surrender of shares of Common Stock of the Company
already owned by the Optionee, or which were obtained by Optionee
in the open public market, having a Fair Market Value equal to
the exercise price of the Option;
[_] by waiver of compensation due or accrued to Optionee for
services rendered;
[_] by delivery of a promissory note in the amount of $________
with such terms as determined by the Committee;
[_] provided that a public market for the Company's stock
exists, through a "same day sale" commitment from the Optionee
and a broker dealer that is a member of the National Association
of Securities Dealers, Inc. (an "NASD Dealer") whereby the
Optionee irrevocably elects to exercise the Option and to sell a
portion of the Shares so purchased to pay for the exercise price
and whereby the NASD Dealer irrevocably commits
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<PAGE>
upon receipt of such Shares to forward the exercise price
directly to the Company; or
[] provided that a public market for the Company's stock exists,
through a "margin" commitment from the Optionee and an NASD
Dealer whereby the Optionee irrevocably elects to exercise this
option and to pledge the Shares so purchased to the NASD Dealer
in a margin account as security for a loan from the NASD Dealer
in the amount of the exercise price, and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the
exercise price directly to the Company.
(c) Withholding Taxes. Prior to the issuance of the Shares upon
exercise of this Option, Optionee must pay or make adequate provision for any
applicable federal or state withholding obligations of the Company. The Optionee
may provide for payment of Optionee's minimum statutory withholding taxes upon
exercise of the Option by requesting that the Company retain Shares with a Fair
Market Value equal to the minimum amount of taxes required to be withheld, all
as set forth in Section 6(c) of the Plan. In such case, the Company shall issue
the net number of Shares to the Optionee by deducting the Shares retained from
the Shares exercised.
(d) Issuance of Shares. Provided that such Stock Option Exercise
Agreement and payment are in form and substance satisfactory to counsel for the
Company, the Company shall cause the Shares to be issued in the name of Optionee
or Optionee's legal representative.
6. Notice of Disqualifying Disposition of ISO Shares. If the Option
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after exercise of the ISO with respect to the Shares to be sold or disposed
of, the Optionee shall immediately notify the Company in writing of such
disposition. Optionee acknowledges and agrees that Optionee may be subject to
income tax withholding by the Company on the compensation income recognized by
the Optionee from any such early disposition by payment in cash or out of the
current wages or other earnings payable to the Optionee.
7. NONTRANSFERABILITY OF OPTION. THIS OPTION MAY NOT BE TRANSFERRED IN ANY
MANNER OTHER THAN BY WILL OR BY THE LAWS OF DESCENT AND DISTRIBUTION AND MAY BE
EXERCISED DURING THE LIFETIME OF OPTIONEE ONLY BY OPTIONEE OR ANY PERMITTED
TRANSFEREE. THE TERMS OF THIS OPTION SHALL BE BINDING UPON THE EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS OF THE OPTIONEE.
8. Federal Tax Consequences. Set forth below is a brief summary as of the
date this form of Option Grant was adopted of some of the federal tax
consequences of exercise of this Option and disposition of the Shares. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE LAWS AND REGULATIONS ARE SUBJECT TO
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<PAGE>
CHANGE, OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR
DISPOSING OF THE SHARES.
(a) Exercise of ISO. If this Option qualifies as an ISO, there will
be no regular federal income tax liability upon the exercise of this Option,
although the excess, if any, of the Fair Market Value of the Shares on the date
of exercise over the Exercise Price will be treated as an adjustment to
alternative minimum taxable income for federal income tax purposes and may
subject the Optionee to an alternative minimum tax liability in the year of
exercise.
(b) Exercise of Nonqualified Stock Option. If this Option does not
qualify as an ISO, there may be a regular federal income tax liability upon the
exercise of the Option. The Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the Fair Market Value of the Shares on the date of exercise over the
Exercise Price. The Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount equal to a percentage of this compensation income at the
time of exercise.
(c) Disposition of Shares. In the case of a nonqualified stock
option, if Shares are held for at least one year before disposition, any gain on
disposition of the Shares will be treated as long-term capital gain for federal
and California income tax purposes. In the case of an ISO, if Shares are held
for at least one year after the date of exercise and at least two years after
the Date of Grant, any gain on disposition of the Shares will be treated as
long-term capital gain for federal and California income tax purposes. If
Shares acquired pursuant to an ISO are disposed of within such one-year or
two-year periods (a "disqualifying disposition"), gain on such disqualifying
disposition will be treated as compensation income (taxable at ordinary income
rates) to the extent of the excess, if any, of the Fair Market Value of the
Shares on the date of exercise over the Exercise Price (the "Spread"). Any gain
in excess of the Spread shall be treated as capital gain.
9. Interpretation. Any dispute regarding the interpretation of this
Grant shall be submitted by Optionee or the Company to the Company's Board of
Directors or the Committee, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or Committee shall be
final and binding on the Company and on Optionee.
10. Entire Agreement. The Plan and the Stock Option Exercise Agreement
attached hereto as Exhibit 1 are incorporated herein by this reference. This
Grant, the Plan and the Stock Option Exercise Agreement constitute the entire
agreement of the parties hereto and supersede all prior undertakings and
agreements with respect to the subject matter hereof.
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<PAGE>
VAYDA CONSULTING, INC.
By:
------------------------
Name:
----------------------
Title:
---------------------
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<PAGE>
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents that
Optionee has read and understands the terms and provisions thereof, and accepts
this Option subject to all the terms and conditions of the Plan and this Stock
Option Grant. Optionee acknowledges that there may be adverse tax consequences
upon exercise of this Option or disposition of the Shares and that Optionee
should consult a tax adviser prior to such exercise or disposition.
OPTIONEE
-----------------------------
Signature
----------------------------
Print Name:
--------------------------
Date:
------------------
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<PAGE>
EXHIBIT 1
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
-------------------------------
This Agreement is made this ____ day of _____, 19__ between Vayda
Consulting, Inc., a California corporation (the "Company"), and the optionee
named below ("Optionee").
Optionee:
Social Security Number:
Address:
Number of Shares Purchased:
Price Per Share:
Aggregate Purchase Price:
Date of Option Grant:
Type of Stock Option: Incentive:
Nonqualified:
1. Optionee hereby delivers to the Company the Aggregate Purchase Price,
to the extent permitted in the Option Grant, as follows [check as applicable and
complete]:
[NOTE: BEFORE GRANTING ANY OPTIONS, THE COMPANY SHOULD DELETE ANY OF THE
FOLLOWING METHODS OF PAYMENT THAT IT DOES NOT WISH TO MAKE AVAILABLE TO THE
OPTIONEES]
[_] cash (check) in the amount of $_____, receipt of which is
acknowledged by the Company;
[_] execution by Optionee of a promissory note for the benefit of the
Company, in the form approved by the Committee (the "Promissory Note")(a copy of
such promissory note is attached hereto);
[_] by delivery of _____fully-paid, nonassessable and vested shares
of the Common Stock of the Company owned by Optionee and owned free and clear of
all liens, claims, encumbrances or security interests, valued at the current
fair market value of $______ per share (determined in accordance with the Plan);
[_] by the waiver hereby of compensation due or accrued for services
rendered in the amount of $_______;
<PAGE>
[_] by delivery of all of the proceeds of a loan from a third party
in the amount of $_____, which loan is guaranteed by the Company;
[_] by delivery of a "same day sale" commitment from the Optionee and
a broker dealer that is a member of the National Association of Securities
Dealers, Inc. (an "NASD Dealer") whereby the Optionee irrevocably elects to
exercise the Option and to sell a portion of the Shares so purchased to pay for
the exercise price of $_____ and whereby the NASD Dealer irrevocably commits
upon receipt of such Shares to forward the exercise price directly to the
Company (this payment method may be used only if a public market for the
Company's stock exists); or
[_] by delivery of a "margin" commitment from the Optionee and an
NASD Dealer whereby the Optionee irrevocably elects to exercise this option and
to pledge the Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the exercise price,
and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to
forward the exercise price of $_______ directly to the Company (this payment
method may be used only if a public market for the Company's stock exists).
2. The Company and Optionee hereby agree as follows:
(a) Purchase of Shares. On this date and subject to the terms and
conditions of this Agreement, Optionee hereby exercises the Stock Option Grant
between the Company and Optionee dated as of the Date of Option Grant set forth
above (the "Grant"), with respect to the Number of Shares Purchased set forth
above of the Company's Common Stock (the "Shares") at an aggregate purchase
price equal to the Aggregate Purchase Price set forth above (the "Purchase
Price") and the Price per Share set forth above (the "Purchase Price Per
Share"). The term "Shares" refers to the Shares purchased under this Agreement
and includes all securities received (a) in replacement of the Shares, and (b)
as a result of stock dividends or stock splits in respect of the Shares.
Capitalized terms used herein that are not defined herein have the definitions
ascribed to them in the Plan or the Grant.
(b) Representations of Purchaser. Optionee represents and warrants to
the Company that:
(i) Optionee has received, read and understood the Plan and
the Grant and agrees to abide by and be bound by their terms and conditions.
(ii) Optionee is capable of evaluating the merits and risks of
this investment, has the ability to protect Optionee's own interests in this
transaction and is financially capable of bearing a total loss of this
investment.
(iii) Optionee is fully aware of (i) the highly speculative
nature of the investment in the Shares; (ii) the financial hazards involved; and
(iii) the lack of liquidity of the Shares and the restrictions on
transferability of the Shares (e.g., that Optionee may not be able to sell or
dispose of the Shares or use them as collateral for loans).
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<PAGE>
(iv) Optionee is purchasing the Shares for Optionee's own
account for investment purposes only and not with a view to, or for sale in
connection with, a distribution of the Shares within the meaning of the
Securities Act of 1933, as amended (the "1933 Act").]
(v) Optionee has no present intention of selling or otherwise
disposing of all or any portion of the Shares.
3. Compliance with Securities Laws. Optionee understands and acknowledges
that the Shares have not been registered under the 1933 Act and that,
notwithstanding any other provision of the Grant to the contrary, the exercise
of any rights to purchase any Shares is expressly conditioned upon compliance
with the 1933 Act and all applicable state securities laws. Optionee agrees to
cooperate with the Company to ensure compliance with such laws. The Shares are
being issued under the 1933 Act pursuant to:/2/
[_] the exemption provided by Rule 701;
[_] the exemption provided by Rule 504;
[_] Section 4(2) of the 1933 Act;
[_] other: [__________________________]
4. Federal Restrictions on Transfer. Optionee understands that the
Shares must be held indefinitely unless they are registered under the 1933 Act
or unless an exemption from such registration is available and that the
certificate(s) representing the Shares will bear a legend to that effect.
Optionee understands that the Company is under no obligation to register the
Shares, and that an exemption may not be available or may not permit Optionee to
transfer Shares in the amounts or at the times proposed by Optionee.
5. Rule 144. Optionee has been advised that Rule 144 promulgated under
the 1933 Act, which permits certain resales or unregistered securities, is not
presently available with respect to the Shares and, in any event, requires that
a minimum of two (2) years elapse between the date of acquisition of Shares from
the Company or an affiliate of the Company and any resale under Rule 144. Prior
to an initial public offering of the Company's stock, "nonaffiliates" (i.e.
persons other than officers, directors and major shareholders of the Company)
may resell only under Rule 144(k), which requires that a minimum of three (3)
years elapse between the date of acquisition of Shares from the Company or an
affiliate of the Company and any resale under Rule 144(k). Rule 144(k) is not
available to affiliates.
6. Rule 701. If the exemption relied upon for exercise of the Shares is
Rule 701, the Shares will become freely transferable, subject to limited
conditions regarding the method of
- -----------------------
/2/The Company will check applicable box
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<PAGE>
sale, by nonaffiliates ninety (90) days after the first sale of common stock of
the Company to the general public pursuant to a registration statement filed
with and declared effective by the Securities and Exchange Commission (the
"SEC"), subject to any lengthier market standoff agreement contained in this
Agreement or entered into by Optionee. Affiliates must comply with the
provisions (other than the holding period requirements) of Rule 144.
7. State Law Restrictions on Transfer. Optionee understands that transfer
of the Shares may be restricted by applicable state securities laws, and that
the certificate(s) representing the Shares may bear a legend or legends to that
effect.
8. Market Standoff Agreement. Optionee agree in connection with any
registration of the Company's securities that, upon the request of the Company
or the underwriters managing any public offering of the Company's securities,
Optionee will not see or otherwise dispose of any Shares without the prior
written consent of the Company or such underwriters, as the case may be, for a
period of time (not to exceed one hundred eighty (180) days) from the effective
date of such registration as the Company or the underwriters may specify for
employee shareholders generally.
9. Legends. Optionee understands and agrees that the certificate(s)
representing the Shares will bear a legend in substantially the following forms,
in addition to any other legends required by applicable law;
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED
ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR COMPLIANCE
WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED."
10. Stop-Transfer Notices. Optionee understands and agrees that, in order
or ensure compliance with the restrictions refereed to herein, the Company may
issue appropriate "stop-transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
11. Tax Consequences. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF
THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX
CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR
ANY TAX ADVICE. IN PARTICULAR, IF OPTIONEE IS AN INSIDER SUBJECT TO SECTION
16(B) OF THE
-4-
<PAGE>
SECURITIES EXCHANGE ACT OF 1934, AND IF THE OPTION BEING EXERCISED WAS GRANTED
WITHIN THE PRECEDING SIX MONTHS, OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED
WITH OPTIONEE'S TAX ADVISER CONCERNING THE ADVISABILITY OF FILING A SECTION
83(B) ELECTION (THE "ELECTION") WITH THE INTERNAL REVENUE SERVICE. IN THE EVENT
THAT OPTIONEE MAKES AN ELECTION, OPTIONEE AGREES TO IMMEDIATELY SO NOTIFY
COMPANY.
12. Repurchase Options. The Company and the Company's shareholders have
certain rights of first refusal that are set forth in Article X of the Company's
Bylaws. A copy of Article X of the Bylaws has been delivered to Optionee.
13. Entire Agreement. The Plan and Grant are incorporated herein by
reference. This Agreement, the Plan and the Grant constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by California law except for that body of law
pertaining to conflict of laws.
OPTIONEE:
By:______________________
Name:____________________
-5-
<PAGE>
EXHIBIT 5
January 26, 1998
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 67,936 shares of the Company's Common
Stock, $.001 par value (the "Common Stock"), issuable upon exercise of options
granted under the Vayda Consulting Inc. 1995 Stock Option Plan (the "Plan"). The
Plan was assumed by the Company in connection with the Company's acquisition of
Vayda Consulting Inc. ("VAYDA"), pursuant to the Agreement and Plan of
Reorganization, dated as of November 26, 1998 (the "Reorganization Agreement"),
by and among the Company, VAYDA ACQUISITION CORP., VAYDA and the sole
shareholder of VAYDA. 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 26, 1998
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
67,936 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 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 incorporation by reference therein of
our reports dated April 29, 1997, July 22, 1997 and October 16, 1997 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,
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
January 26, 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 report dated February 28, 1997, relating to the
consolidated balance sheets of PLATINUM technology, inc. and subsidiaries as of
December 31, 1995 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, 1996, and related financial statement
schedule, incorporated by reference in this registration statement on Form S-8.
Our report was based in part on the reports of other auditors.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
January 26, 1998
<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, 1996 and also appearing in the Current Report on Form
8-K of PLATINUM technology, inc. dated and filed on January 27, 1998.
/s/ Deloitte & Touche LLP
San Jose, California
January 26, 1998
<PAGE>
Arthur Andersen LLP Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of Platinum Technology, Inc. on Form
S-8 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, 1996
and included in the current report on Form 8-K of Platinum Technology, Inc.
/s/ ARTHUR ANDERSEN LLP
------------------------
ARTHUR ANDERSEN LLP
Los Angeles, California
January 26, 1998
<PAGE>
Exhibit 23.4
Arthur Andersen LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of Platinum Technology, Inc. on Form
S-8 of our reports for Softool Corporation dated August 29, 1995 (except with
respect to the matter discussed in Note 14, as to which the date is November 17,
1995) and included in Platinum Technology, Inc.'s Form 10-K for the year ended
December 31, 1996 and included in the current report on Form 8-K of Platinum
Technology, Inc.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
January 26, 1998
