<PAGE> 1
As filed with the Securities and Exchange Commission on January 18, 2000
Registration No. 333-91111
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-------------------
POST-EFFECTIVE AMENDMENT NO. 1 ON
FORM S-8 TO FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PEOPLESOFT, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 68-0137069
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4460 HACIENDA DRIVE
PLEASANTON, CA 94588
(Address of Principal Executive Offices) (Zip Code)
THE VANTIVE CORPORATION AMENDED AND RESTATED 1991 STOCK OPTION PLAN,
THE VANTIVE CORPORATION 1995 OUTSIDE DIRECTORS STOCK OPTION PLAN,
THE VANTIVE CORPORATION 1997 NONSTATUTORY STOCK OPTION PLAN
(Full Title of the Plans)
CRAIG CONWAY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PEOPLESOFT, INC.
4460 HACIENDA DRIVE
PLEASANTON, CA 94588
(Name and Address of Agent for Service)
(925) 694-3000
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Kenneth R. Lamb
Peter T. Heilmann
Gibson, Dunn & Crutcher LLP
One Montgomery Street, Telesis Tower
San Francisco, CA 94104
(415) 393-8200
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered(1)(2) per Share(3) Offering Price(3) Fee(3)(4)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 4,889,646 $9.62 $47,038,394.52 $5,658.83
value $.01 per share
====================================================================================================================
</TABLE>
(1) Shares subject to Options assumed as of December 31, 1999. Pursuant to
Rule 416(a), this Registration Statement shall also cover any
additional shares of the Registrant's Common Stock which become
issuable under The Vantive Corporation Amended and Restated 1991 Stock
Option Plan, The Vantive Corporation 1995 Outside Directors Stock
Option Plan and The Vantive Corporation 1997 Nonstatutory Stock Option
Plan (collectively, the "Plans") by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number
of the outstanding shares of the Registrant's Common Stock.
(2) The Registrant previously registered 25,892,462 shares of its common
stock, par value $.01 per share, under its Registration Statement on
Form S-4 (No. 333-91111) (the "Form S-4"), which was declared effective
on November 17, 1999. The number of shares registered under the Form
S-4 was based on the aggregate number of shares of The Vantive
Corporation ("Vantive") common stock, par value $.001 per share
("Vantive Common Stock") then outstanding and the number of shares of
Vantive Common Stock issuable upon exercise of vested options to
acquire shares of Vantive Common Stock then outstanding under the
Plans, shares of Vantive Common Stock issuable upon conversion of
Vantive's convertible subordinated debt, and shares of Vantive Common
Stock issuable to other third parties, multiplied by an exchange ratio
of 0.825 shares of common stock, par value $.01 per share, of the
Registrant. As of December 31, 1999, 23,230,983 shares of Registrant's
common stock, par value $.01 per share, were issued under the Form S-4.
(3) Weighted average exercise price of outstanding options assumed as of
December 31, 1999. Calculated solely for purposes of this offering
under Rule 457(h) of the Securities Act of 1933, as amended, on the
basis of the maximum offering price per share that such options may be
exercised.
(4) A registration fee of $115,742.25 was previously paid in connection
with the registration of 25,892,462 shares of the Registrant's common
stock under the Form S-4. The registration fee paid under the Form S-4
was calculated pursuant to Rules 457(f) and 457(c) under the Securities
Act of 1933, as amended (the "Securities Act"). Based on the average of
the high and low sales prices of Vantive Common Stock, as reported by
the Nasdaq National Market System on November 10, 1999, the proposed
maximum offering price under the Form S-4 was $416,339,027. 2,661,479
of the 4,889,464 shares subject to options assumed by the Registrant
were included in the Form S-4 at a proposed maximum offering price per
share of $16.08 and a proposed maximum aggregate offering price of
$416,339,027 for which a registration fee of $115,742.25 was paid with
the Form S-4. Accordingly, a registration fee of $5,658.83 to register
the remaining 2,228,167 shares subject to options assumed by the
Registrant is payable herewith.
================================================================================
<PAGE> 3
INTRODUCTION
This Registration Statement on Form S-8 is filed by PeopleSoft, Inc., a
Delaware corporation (the "Company," "Corporation" or the "Registrant"),
relating to 4,889,646 shares of its common stock, par value $0.01 per share (the
"Common Stock"), issuable to eligible employees of the Company under The Vantive
Corporation Amended and Restated 1991 Stock Option Plan, The Vantive Corporation
1995 Outside Directors Stock Option Plan and The Vantive Corporation 1997
Nonstatutory Stock Option Plan, as assumed by the Company (collectively, the
"Plans").
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which previously have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(ii) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999;
(iii) The Company's Current Reports on Forms 8-K, filed with the
Commission on June 28, 1999, October 13, 1999 and January 4, 2000;
(iv) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") since the end of the
fiscal year covered by the Annual Report referred to in (i) above;
(v) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the Commission on
October 7, 1992, including any amendment or report filed for the purpose of
updating such description;
(vi) The description of the Company's Preferred Shares Purchase
Rights contained in its Registration Statement on Form 8-A/A filed with the
Commission on March 25, 1998 including any amendment or report filed for the
purpose of updating such description.
<PAGE> 4
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto, which indicates that all securities offered hereunder have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
herein by reference modifies or supersedes such document or such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
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
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933 (the "1933 Act"). As
permitted by the Delaware General Corporation Law, the Company has included in
its Certificate of Incorporation a provision to eliminate the personal liability
of its directors for monetary damages for breach or alleged breach of their
fiduciary duties as directors, subject to certain exceptions. In addition, the
Bylaws of the Company require it to (i) indemnify the officers and directors
under certain circumstances, including those circumstances in which
indemnification would otherwise be discretionary, and (ii) advance expenses to
the officers and directors as incurred in connection with proceedings against
them for which they may be indemnified. The Company has entered into
indemnification agreements with its officers and directors containing provisions
that are in some respects broader than the specific indemnification provisions
contained in the Delaware General Corporation Law. The indemnification
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 (other than liabilities arising
from willful misconduct of a culpable nature), to advance expenses incurred as a
result of any proceeding against them as to which they may be indemnified, and
to obtain directors' and officers' insurance if available on reasonable terms.
The Company believes that these charter provisions and indemnification
agreements are necessary to attract and retain qualified persons as directors
and officers.
Item 7. Exemption from Registration Claimed
Not Applicable.
<PAGE> 5
Item 8. Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
<S> <C>
4.1 Restated Certificate of Incorporation of Registrant filed with
the Secretary of State of the State of Delaware on May 24,
1995 (incorporated by reference to Exhibit 4.1 filed with the
Registrant's Form S-8 (No. 333-08575) filed with the
Securities and Exchange Commission on July 22, 1996).
4.2 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State
of Delaware on June 17, 1996 (incorporated by reference to
Exhibit 4.2 filed with the Registrant's Form S-8 (No.
333-08575) filed with the Securities and Exchange Commission
on July 22, 1996).
4.3 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State
of Delaware on July 3, 1997 (incorporated by reference to
Exhibit 3.3 filed with the Registrant's Annual Report on Form
10-K for the year ended December 31, 1997).
4.4 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State
of Delaware on June 29, 1998 (incorporated by reference to
Exhibit 3.4 filed with the Registrant's Registration Statement
on Form S-4 (No. 333-91111) filed with the Securities and
Exchange Commission on November 17, 1999).
4.5 Certificate of Designation as filed with the Secretary of
State of the State of Delaware on March 24, 1998 (incorporated
by reference to Exhibit 3.4 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.6 Bylaws of Registrant as amended to date (incorporated by
reference to Exhibit 3.5 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1998).
4.7 The description of the Registrant's Common Stock. Reference is
to the Registrant's Registration Statement on Form 8-A, filed
with the Commission on October 7, 1992, incorporated by
reference pursuant to Item 3(v).
4.8 The description of the Registrant's Preferred Shares Purchase
Rights. Reference is made to the Registrant's Registration
Statement on Form 8-A/A filed with the Commission on March 25,
1998, incorporated by reference pursuant to Item 3(vi).
4.9 Specimen Certificate of the Registrant's Common Stock
(incorporated by reference to Exhibit 1 filed with Amendment
No. 1 to the Registrant's Form 8-A filed with the Securities
and Exchange Commission on November 6, 1992).
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5).
24 Power of Attorney (previously filed).
99.1 The Vantive Corporation Amended and Restated 1991 Stock Option
Plan.
99.2 The Vantive Corporation 1995 Outside Directors Stock Option
Plan.
99.3 The Vantive Corporation 1997 Nonstatutory Stock Option Plan.
</TABLE>
- ------------------
Item 9. Undertaking
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
<PAGE> 6
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 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 (1)(a)(i)
and (1)(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 by the
Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in
this registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered 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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Pleasanton, State of California, on this 18th day of
January, 2000.
PeopleSoft, Inc.
By: /s/ STEPHEN F. HILL
---------------------------------
Stephen F. Hill
Vice President and
Acting Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
* Chairman of the Board of Directors January 18, 2000
- -----------------------------------
David A. Duffield
* Vice Chairman of the Board of Directors January 18, 2000
- -----------------------------------
Aneel Bhusri
* President, Chief Executive January 18, 2000
- ----------------------------------- Officer and Director
Craig Conway (Principal Executive Officer and Director)
/s/ STEPHEN F. HILL Vice President and Acting January 18, 2000
- ----------------------------------- Chief Financial Officer
Stephen F. Hill (Principal Financial and
Accounting Officer)
Director January __, 2000
- -----------------------------------
A. George Battle
* Director January 18, 2000
- -----------------------------------
George J. Still Jr.
* Director January 18, 2000
- -----------------------------------
Cyril J. Yansouni
* By: /s/ STEPHEN F. HILL
-----------------------------
Stephen F. Hill
Attorney-in-Fact
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
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<S> <C>
4.1 Restated Certificate of Incorporation of Registrant filed with
the Secretary of State of the State of Delaware on May 24,
1995 (incorporated by reference to Exhibit 4.1 filed with the
Registrant's Form S-8 (No. 333-08575) filed with the
Securities and Exchange Commission on July 22, 1996).
4.2 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State
of Delaware on June 17, 1996 (incorporated by reference to
Exhibit 4.2 filed with the Registrant's Form S-8 (No.
333-08575) filed with the Securities and Exchange Commission
on July 22, 1996).
4.3 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State
of Delaware on July 3, 1997 (incorporated by reference to
Exhibit 3.3 filed with the Registrant's Annual Report on Form
10-K for the year ended December 31, 1997).
4.4 Certificate of Amendment to Certificate of Incorporation of
Registrant, as filed with the Secretary of State of the State
of Delaware on June 29, 1998 (incorporated by reference to
Exhibit 3.4 filed with the Registrant's Registration Statement
on Form S-4 (No. 333-91111) filed with the Securities and
Exchange Commission on November 17, 1999).
4.5 Certificate of Designation as filed with the Secretary of
State of the State of Delaware on March 24, 1998 (incorporated
by reference to Exhibit 3.4 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997).
4.6 Bylaws of Registrant as amended to date (incorporated by
reference to Exhibit 3.5 filed with the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1998).
4.7 The description of the Registrant's Common Stock. Reference is
to the Registrant's Registration Statement on Form 8-A, filed
with the Commission on October 7, 1992, incorporated by
reference pursuant to Item 3(v).
4.8 The description of the Registrant's Preferred Shares Purchase
Rights. Reference is made to the Registrant's Registration
Statement on Form 8-A/A filed with the Commission on March 25,
1998, incorporated by reference pursuant to Item 3(vi).
4.9 Specimen Certificate of the Registrant's Common Stock
(incorporated by reference to Exhibit 1 filed with Amendment
No. 1 to the Registrant's Form 8-A filed with the Securities
and Exchange Commission on November 6, 1992).
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5).
24 Power of Attorney (previously filed).
99.1 The Vantive Corporation Amended and Restated 1991 Stock Option
Plan.
99.2 The Vantive Corporation 1995 Outside Directors Stock Option
Plan.
99.3 The Vantive Corporation 1997 Nonstatutory Stock Option Plan.
</TABLE>
<PAGE> 1
EXHIBIT 5
[Letterhead of Gibson, Dunn & Crutcher LLP]
January 18, 2000
PeopleSoft, Inc.
4460 Hacienda Drive
Pleasanton, CA 94588
Re: Post-Effective Amendment No. 1 Registration Statement on
Form S-8 to Form S-4 of PeopleSoft, Inc.
Ladies and Gentlemen:
We refer to the post-effective amendment No. 1 to registration statement
on Form S-8 to Form S-4 ("Registration Statement"), under the Securities Act of
1933, as amended (the "Securities Act") filed by PeopleSoft, Inc., a Delaware
corporation (the "Company"), with respect to the proposed offering by the
Company of up to 4,889,646 shares (the "Shares") of the common stock of the
Company, $.01 par value per share (the "Common Stock"), subject to issuance by
the Company upon exercise of options granted under The Vantive Corporation
Amended and Restated 1991 Stock Option Plan, The Vantive Corporation 1995
Outside Directors Stock Option Plan and The Vantive Corporation 1997
Nonstatutory Stock Option Plan (the "Plans") assumed by the Company as of
December 31, 1999 pursuant to the terms of the Agreement and Plan of Merger,
dated as of October 11, 1999 among the Company, Vickers Acquisition, Inc., a
Delaware corporation and wholly-owned subsidiary of the Company, and The Vantive
Corporation, a Delaware corporation.
We have examined the originals or certified copies of such corporate
records, certificates of officers of the Company and/or public officials and
such other documents and have made such other factual and legal investigations
as we have deemed relevant and necessary as the basis for the opinions set forth
below. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as conformed or
photostatic copies and the authenticity of the originals of such copies.
Based on our examination mentioned above, subject to the assumptions
stated above and relying on the statements of fact contained in the documents
that we have examined, we are of the opinion that (i) the issuance by the
Company of the Shares has been duly authorized and (ii) upon payment of the
option exercise price and issuance of the Shares in accordance with the terms of
the Plans, the Shares will be duly and validly issued, fully paid and
non-assessable shares of Common Stock.
We are admitted to practice in the State of California, and are not
admitted to practice in the State of Delaware. However, for the limited purposes
of our opinion set forth above, we are generally familiar with the General
Corporation Law of the State of Delaware (the "DGCL") as presently in effect and
have made such inquiries as we consider necessary to render this opinion with
respect to a Delaware corporation. This opinion letter is limited to the laws of
the State of California and, to the limited extent set forth above, the DGCL, as
such laws presently exist and to the facts as they presently exist. We express
no opinion with respect to the effect or applicability of the laws of any other
jurisdiction. We assume no obligation to revise or supplement this opinion
letter should the laws of such jurisdictions be changed after the date hereof by
legislative action, judicial decision or otherwise.
<PAGE> 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the General Rules and Regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
-----------------------------------
GIBSON, DUNN & CRUTCHER LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Vantive Corporation Amended and Restated
1991 Stock Option Plan, the Vantive Corporation 1995 Outside Directors Stock
Option Plan, and the Vantive Corporation 1997 Nonstatutory Stock Option Plan of
PeopleSoft Inc., of our report dated January 26, 1999 with respect to the
consolidated financial statements of PeopleSoft, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998 filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Walnut Creek, California
January 13, 2000
<PAGE> 1
EXHIBIT 99.1
THE VANTIVE CORPORATION
AMENDED AND RESTATED
1991 STOCK OPTION PLAN
(As Amended Effective May 5, 1998)
1. Establishment and Purpose.
(a) Establishment. The Vantive Corporation 1991 Stock Option Plan
(formerly known as the Information WorkBench, Inc. 1991 Stock Option Plan and
the ProActive Software, Inc. 1991 Stock Option Plan) was initially adopted
effective October 16, 1991 (the "INITIAL PLAN"). The Initial Plan is hereby
amended and restated in its entirety as The Vantive Corporation Amended and
Restated 1991 Stock Option Plan (the "PLAN").
(b) Purpose. The purpose of the Plan is to attract, retain and
reward persons providing services to The Vantive Corporation, a Delaware
corporation, and any successor corporation thereto (collectively referred to as
the "COMPANY"), and any present or future parent and/or subsidiary corporations
of such corporation (all of whom along with the Company being individually
referred to as a "PARTICIPATING COMPANY" and collectively referred to as the
"PARTICIPATING COMPANY GROUP"), and to motivate such persons to contribute to
the growth and profits of the Participating Company Group in the future. For
purposes of the Plan, a parent corporation and a subsidiary corporation shall be
as defined in sections 424(e) and 424(f) of the Internal Revenue Code of 1986,
as amended (the "CODE").
2. Administration.
(a) Administration by Board and/or Committee. The Plan shall be
administered by the Board of Directors of the Company (the "BOARD") and/or by a
duly appointed committee of the Board having such powers as shall be specified
by the Board. Any subsequent references herein to the Board shall also mean the
committee if such committee has been appointed and, unless the powers of the
committee have been specifically limited, the committee shall have all of the
powers of the Board granted herein, including, without limitation, the power to
terminate or amend the Plan at any time, subject to the terms of the Plan and
any applicable limitations imposed by law. All questions of interpretation of
the Plan or of any options granted under the Plan (an "OPTION") shall be
determined by the Board, and such determinations shall be final and binding upon
all persons having an interest in the Plan and/or any Option.
(b) Delegation of Authority to Officers. The Board shall have the
power and authority to delegate to any proper officer of the Company the
authority to grant one or more Options, without further approval of the Board,
to any person eligible pursuant to paragraph 3, other than a person who, at the
time of such grant, is an officer or director of the Company or any other person
whose transactions in the common stock of the Company are subject to Section 16
1
<PAGE> 2
of the Securities Exchange Act of 1934, as amended; provided, however, that (i)
such Options shall not be granted to any one person within any fiscal year of
the Company for more than 50,000 shares in the aggregate, (ii) the exercise
price per share of each such Option shall be equal to 100% of the closing price
per share of the common stock of the Company on the effective date of grant (or,
if no price is reported for such date, on the last day preceding the date of
grant on which such price is reported) as reported on the Nasdaq National Market
(or the average of the closing bid and asked prices if the shares are so quoted
instead), or as reported on such other stock exchange or market system which
constitutes the primary market for the Stock, and (iii) each such Option shall
be subject to the terms and conditions of the appropriate standard form of
Option Agreement approved by the Board and shall conform to the provisions of
the Plan and such other guidelines as shall be established from time to time by
the Board.
(c) Options Authorized. Options may be either incentive stock
options as defined in section 422 of the Code ("INCENTIVE STOCK OPTIONS") or
nonqualified stock options.
(d) Authority of Officers. Any officer of a Participating Company
shall have the authority to act on behalf of the Company with respect to any
matter, right, obligation, or election which is the responsibility of or which
is allocated to the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, or election.
(e) Disinterested Administration. With respect to the
participation in the Plan of employees who are also officers or directors of the
Company subject to Section 16 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), the Plan shall be administered by the Board in compliance
with the "disinterested administration" requirement of Rule 16b-3, as
promulgated under the Exchange Act and amended from time to time or any
successor rule or regulation ("RULE 16b-3").
3. Eligibility.
(a) Eligible Persons. Options may be granted only to employees
(including officers) and directors of the Participating Company Group or to
individuals who are rendering services as consultants to the Participating
Company Group. For purposes of the foregoing sentence, "employees" shall include
prospective employees to whom Options are granted in connection with written
offers of employment and "consultants" shall include prospective consultants to
whom Options are granted in connection with written offers of engagement with
the Participating Company Group. The Board shall, in its sole discretion,
determine which eligible persons shall be granted Options (an "OPTIONEE").
Eligible persons may be granted more than one (1) Option.
(b) Directors Serving on Committee. If a committee of the Board
has been established to administer the Plan in compliance with the
"disinterested administration" requirement of Rule 16b-3, no member of such
committee, while a member, shall be eligible to be granted an Option.
(c) Restrictions on Option Grants. Any person who is not an
employee on the effective date of the grant of an Option to such person may be
granted only a nonqualified stock
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option. An Incentive Stock Option granted to a prospective employee upon the
condition that such person become an employee shall be deemed granted effective
on the date such person commences service with a Participating Company, with an
exercise price determined as of such date in accordance with paragraph 6(a).
(d) Section 162(m) Grant Limit. Subject to adjustment as provided
in paragraph 10, at any such time as a Participating Company is a "publicly held
corporation" within the meaning of Section 162(m) of the Code and the
regulations thereunder, no Employee shall be granted one or more Options within
any fiscal year of the Company which in the aggregate are for the purchase of
more than eight hundred thousand (800,000) shares (the "SECTION 162(m) GRANT
LIMIT"). An Option which is canceled in the same fiscal year of the Company in
which it was granted shall continue to be counted against the Section 162(m)
Grant Limit for such period.
4. Shares Subject to Option. Options shall be for the purchase of shares
of the authorized but unissued or reacquired common stock, par value $0.001, of
the Company (the "STOCK"), subject to adjustment as provided in paragraph 10
below. The maximum number of shares of Stock which may be issued under the Plan
shall be nine million four hundred thousand (9,400,000) shares. In the event
that any outstanding Option for any reason expires or is terminated or canceled
and/or shares of Stock subject to repurchase are repurchased by the Company, the
shares allocable to the unexercised portion of such Option, or such repurchased
shares, may again be subject to an Option grant.
5. Time for Granting Options. All Options shall be granted, if at all,
within ten (10) years from October 16, 1991.
6. Terms, Conditions and Form of Options. Subject to the provisions of
the Plan, the Board shall determine for each Option (which need not be
identical) the number of shares of Stock for which the Option shall be granted,
the exercise price of the Option, the timing and terms of exercisability and
vesting of the Option, the time of expiration of the option, the effect of the
Optionee's termination of employment or service, whether the Option is to be
treated as an Incentive Stock Option or as a nonqualified stock option, the
method for satisfaction of any tax withholding obligation arising in connection
with an Option, including by withholding or delivery of shares of stock, and all
other terms and conditions of the Option not inconsistent with the Plan. Options
granted pursuant to the Plan shall be evidenced by written agreements specifying
the number of shares of Stock covered thereby, in such form as the Board shall
from time to time establish, which agreements may incorporate all or any of the
terms of the Plan by reference and shall comply with and be subject to the
following terms and conditions:
(a) Option Exercise Price. The exercise price for each Option
shall be established in the sole discretion of the Board; provided, however,
that (i) the exercise price per share for an Incentive Stock Option shall not be
less than the fair market value, as determined by the Board, of a share of Stock
on the effective date of grant of the Option, (ii) the exercise price per share
for a nonqualified stock option shall not be less than eighty-five percent (85%)
of the fair market value, as determined by the Board, of a share of Stock on the
effective date of grant of the Option and (iii) no Incentive Stock Option
granted to an Optionee who at the time the
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<PAGE> 4
Option is granted owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of a Participating Company within
the meaning of section 422(b)(6) of the Code (a "TEN PERCENT OWNER OPTIONEE")
shall have an exercise price per share less than one hundred ten percent (110%)
of the fair market value of a share of Stock on the effective date of grant of
the Option. Notwithstanding the foregoing, an Option (whether an Incentive Stock
Option or a nonqualified stock option) may be granted with an exercise price
lower than the minimum exercise price set forth above if such Option is granted
pursuant to an assumption or substitution for another option in a manner
qualifying with the provisions of section 424(a) of the Code.
(b) Exercise Period of Options. The Board shall have the power to
set, including by amendment of an Option, the time or times within which each
Option shall be exercisable or the event or events upon the occurrence of which
all or a portion of each Option shall be exercisable and the term of each
Option; provided, however, that (i) no Option shall be exercisable after the
expiration of ten (10) years after the effective date of grant of such Option,
(ii) no Incentive Stock Option granted to a Ten Percent Owner Optionee shall be
exercisable after the expiration of five (5) years after the effective date of
grant of such Option, and (iii) no Option granted to a prospective employee or
prospective consultant may become exercisable prior to the date on which such
person commences service with a Participating Company.
(c) Payment of Exercise Price.
(i) Forms of Consideration Authorized. Payment of the
exercise price for the number of shares of Stock being purchased pursuant to any
Option shall be made (1) in cash, by check, or cash equivalent, (2) by tender to
the Company of shares of the Company's stock owned by the Optionee having a
value, as determined by the Board (but without regard to any restrictions on
transferability applicable to such stock by reason of federal or state
securities laws or agreements with an underwriter for the Company), not less
than the exercise price, (3) by the Optionee's promissory note in a form
approved by the Company, (4) by the assignment of the proceeds of a sale or loan
with respect to some or all of the shares being acquired upon the exercise of
the Option (including, without limitation, through an exercise complying with
the provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System) (a "CASHLESS EXERCISE"), or (5) by any
combination thereof. The Board may at any time or from time to time, by adoption
of or by amendment to the standard form or forms of stock option agreement
described in paragraph 7 below, or by other means, grant Options which do not
permit all of the foregoing forms of consideration to be used in payment of the
exercise price and/or which otherwise restrict one (1) or more forms of
consideration.
(ii) Tender of Company Stock. Notwithstanding the
foregoing, an Option may not be exercised by tender to the Company of shares of
the Company's stock to the extent such tender of stock would constitute a
violation of the provisions of any law, regulation and/or agreement restricting
the redemption of the Company's stock. Unless otherwise provided for by the
Board, an Option may not be exercised by tender to the Company of shares of the
Company's stock unless such shares of the Company's stock either have been owned
by the
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<PAGE> 5
Optionee for more than six (6) months or were not acquired, directly or
indirectly, from the Company.
(iii) Promissory Notes. No promissory note shall be
permitted if an exercise using a promissory note would be a violation of any
law. Any permitted promissory note shall be due and payable not more than five
(5) years after the Option is exercised, and interest shall be payable at least
annually and be at least equal to the minimum interest rate necessary to avoid
imputed interest pursuant to all applicable sections of the Code. The Board
shall have the authority to permit or require the Optionee to secure any
promissory note used to exercise an Option with the shares of Stock acquired on
exercise of the Option and/or with other collateral acceptable to the Company.
Unless otherwise provided by the Board, in the event the Company at any time
becomes subject to the regulations promulgated by the Board of Governors of the
Federal Reserve System or any other governmental entity affecting the extension
of credit in connection with the Company's securities, any promissory note shall
comply with such applicable regulations, and the Optionee shall pay the unpaid
principal and accrued interest, if any, to the extent necessary to comply with
such applicable regulations.
(iv) Cashless Exercise. The Company reserves, at any
and all times, the right, in the Company's sole and absolute discretion, to
establish, decline to approve and/or terminate any program and/or procedures for
the exercise of Options by means of a Cashless Exercise.
7. Standard Forms of Stock Option Agreement.
(a) Incentive Stock Options. Unless otherwise provided for by the
Board at the time an Option is granted, an Option designated as an "Incentive
Stock Option" shall comply with and be subject to the terms and conditions set
forth in the form of incentive stock option agreement attached hereto as Exhibit
A and as amended from time to time.
(b) Nonqualified Stock Options. Unless otherwise provided for by
the Board at the time an Option is granted, an Option designated as a
"Nonqualified Stock Option" shall comply with and be subject to the terms and
conditions set forth in the form of nonqualified stock option agreement attached
hereto as Exhibit B and as amended from time to time.
(c) Standard Term for Options. Unless otherwise provided for by
the Board in the grant of an Option, any Option granted hereunder shall be
exercisable for a term of ten (10) years from the effective date of grant of the
Option.
8. Authority to Vary Terms. The Board shall have the authority from time
to time to vary the terms of either of the standard forms of stock option
agreement described in paragraph 7 above either in connection with the grant or
amendment of an individual Option or in connection with the authorization of a
new standard form or forms; provided, however, that the terms and conditions of
such revised or amended standard form or forms of stock option agreement shall
be in accordance with the terms of the Plan. Such authority shall include, but
not by way of limitation, the authority to grant Options which are not
immediately exercisable.
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<PAGE> 6
9. Fair Market Value Limitation. To the extent that the aggregate fair
market value (determined at the time the Option is granted) of stock with
respect to which Incentive Stock Options are exercisable by an Optionee for the
first time during any calendar year (under all stock option plans of the
Company, including the Plan) exceeds One Hundred Thousand Dollars ($100,000),
such options shall be treated as nonqualified stock options. This paragraph
shall be applied by taking Incentive Stock Options into account in the order in
which they were granted.
10. Effect of Change in Stock Subject to Plan. Appropriate adjustments
shall be made in the number and class of shares of Stock subject to the Plan, to
the Section 162(m) Grant Limit, and to any outstanding Options and in the
exercise price of any outstanding Options in the event of a stock dividend,
stock split, reverse stock split, recapitalization, combination,
reclassification, or like change in the capital structure of the Company. In the
event a majority of the shares which are of the same class as the shares that
are subject to outstanding Options are exchanged for, converted into, or
otherwise become shares of another corporation (the "NEW SHARES"), the Company
may unilaterally amend the outstanding Options to provide that such Options are
exercisable for New Shares. In the event of any such amendments, the number of
shares and the exercise prices of the outstanding Options shall be adjusted in a
fair and equitable manner.
11. Transfer of Control. A "TRANSFER OF CONTROL" shall be deemed to have
occurred in the event any of the following occurs with respect to the Company:
(a) the direct or indirect sale or exchange by the stockholders
of the Company of all or substantially all of the stock of the Company where the
stockholders of the Company before such sale or exchange do not retain, directly
or indirectly, at least a majority of the beneficial interest in the voting
stock of the Company after such sale or exchange;
(b) a merger or consolidation in which the Company is not the
surviving corporation;
(c) a merger or consolidation in which the Company is the
surviving corporation where the stockholders of the Company before such merger
or consolidation do not retain, directly or indirectly, at least a majority of
the beneficial interest in the voting stock of the Company after such merger or
consolidation;
(d) the sale, exchange, or transfer of all or substantially all
of the assets of the Company (other than a sale, exchange, or transfer to one
(1) or more subsidiary corporations (as defined in paragraph 1 above) of the
Company); or
(e) a liquidation or dissolution of the Company.
In the event of a Transfer of Control, the Board, in its sole
discretion, may arrange with the surviving, continuing, successor, or purchasing
corporation, or parent corporation thereof, as the case may be (the "ACQUIRING
CORPORATION"), for the Acquiring Corporation to either assume the Company's
rights and obligations under outstanding stock option agreements or substitute
options for the Acquiring Corporation's stock for such outstanding Options. Any
Options which
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<PAGE> 7
are neither assumed or substituted for by the Acquiring Corporation nor
exercised as of the date of the Transfer of Control shall terminate effective as
of the date of the Transfer of Control.
12. Provision of Information. Each Optionee shall be given access to
information concerning the Company equivalent to that information generally made
available to the Company's common stockholders.
13. Options Non-Transferable. During the lifetime of the Optionee, the
Option shall be exercisable only by the Optionee. No Option shall be assigned or
transferred by the Optionee, except by will or by the laws of descent and
distribution.
14. Indemnification. In addition to such other rights of indemnification
as they may have as members of the Board or officers or employees of the
Participating Company Group, members of the Board and any officers or employees
of the Participating Company Group to whom authority to act for the Board is
delegated shall be indemnified by the Company against all reasonable expenses,
including attorneys' fees, actually and necessarily incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same.
15. Termination or Amendment of Plan or Options. The Board, including
any duly appointed committee of the Board, may terminate or amend the Plan or
any Option at any time; provided, however, that without the approval of the
Company's stockholders, there shall be (a) no increase in the total number of
shares of Stock covered by the Plan (except by operation of the provisions of
paragraph 10 above), (b) no change in the class of persons eligible to receive
Incentive Stock Options and (c) no expansion in the class of persons eligible to
receive nonqualified stock options. In addition to the foregoing, the approval
of the Company's stockholders shall be sought for any amendment to the Plan for
which the Board deems stockholder approval necessary in order to comply with
Rule 16b-3. In any event, no amendment may adversely affect any then outstanding
Option, or any unexercised portion thereof, without the consent of the Optionee,
unless such amendment is required to enable an Option designated as an Incentive
Stock Option to qualify as an Incentive Stock Option.
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<PAGE> 8
PLAN HISTORY
October 16, 1991 Board of Directors adopted the Plan with a
share reserve of 500,000 shares
August 11, 1992 Board of Directors approved an increase in
the Plan share reserve of 295,060 shares
(from 500,000 to 795,060 shares)
October 12, 1992 Shareholders approved the adoption of the
Plan with a share reserve of 795,060 shares
March 30, 1993 Board of Directors approved an increase in
the Plan share reserve of 851,309 shares
(from 795,060 to 1,646,369 shares)
June 21, 1993 Shareholders approved the share reserve
increase to 1,646,369 shares
July 7, 1994 Board of Directors approved an increase in
the Plan share reserve of 156,000 shares
(from 1,646,369 to 1,802,369 shares)
November 8, 1994 Board of Directors approved amendment and
restatement of the Plan and new standard
forms of immediately exercisable incentive
and nonqualified stock option agreements
February 22, 1995 Board of Directors approved an increase in
the Plan share reserve of 400,000 shares
(from 1,802,369 to 2,202,369 shares)
May 10, 1995 Board of Directors approved an increase in
the Plan share reserve of 600,000 shares
(from 2,202,369 to 2,802,369 shares)
May 30, 1995 Shareholders approved the share reserve
increase to 2,802,369 shares
June 28, 1995 Board of Directors approved (i) an increase
in the Plan share reserve of 697,631 shares
(from 2,802,369 to 3,500,000 shares), (ii)
an expansion of the eligibility provisions
to permit prospective employees and
consultants to receive options under the
Plan, (iii) a limitation of the 110% of fair
market value exercise price (for 10%
stockholders) to incentive stock options
only, (iv) the
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issuance of reacquired shares upon exercise
of options, (v) an indemnification provision
for persons administering the Plan, (vii)
other amendments to reflect the Company's
Delaware reincorporation and status as a
publicly-traded company, and (vi) new
standard forms of immediately exercisable
incentive and nonqualified stock option
agreements
July 28, 1995 Shareholders approved the share reserve
increase to 3,500,000 shares.
September 18, 1996 Board amends Plan to authorize delegation of
grant making authority to officers.
September 30, 1996 Board declares 2-for-1 stock dividend
adjusting the share reserve from 3,500,000
to 7,000,000 shares.
March 5, 1997 Board of Directors approved (i) an increase
in the Plan share reserve of 1,200,000
shares (from 7,000,000 to 8,200,000 shares),
and (ii) a limit of 800,000 shares that
each optionee may be granted in one fiscal
year.
May 1, 1997 Stockholders approved the share reserve
increase and the 800,000 share limit to be
granted to an optionee in one fiscal year.
March 27, 1998 Board approved an increase in the Plan share
reserve of 1,200,000 shares (from 8,200,000
to 9,400,000 shares).
May 5, 1998 Stockholders approved the share reserve
increase to 9,400,000 shares.
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<PAGE> 1
EXHIBIT 99.2
THE VANTIVE CORPORATION
1995 OUTSIDE DIRECTORS STOCK OPTION PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 ESTABLISHMENT. The Vantive Corporation 1995 Outside Directors
Stock Option Plan (the "PLAN") is hereby established effective as of the
effective date of the initial registration by the Company of its Stock under
Section 12 of the Exchange Act (the "EFFECTIVE DATE").
1.2 PURPOSE. The purpose of the Plan is to advance the interests
of the Participating Company Group and its stockholders by providing an
incentive to attract and retain highly qualified persons to serve as Outside
Directors of the Company and by creating additional incentive for Outside
Directors to promote the growth and profitability of the Participating Company
Group.
1.3 TERM OF PLAN. The Plan shall continue in effect until the
earlier of its termination by the Board or the date on which all of the shares
of Stock available for issuance under the Plan have been issued and all
restrictions on such shares under the terms of the Plan and the agreements
evidencing Options granted under the Plan have lapsed.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Whenever used herein, the following terms shall
have their respective meanings set forth below:
(a) "BOARD" means the Board of Directors of the Company.
If one or more Committees have been appointed by the Board to administer the
Plan, "Board" also means such Committee(s).
(b) "CODE" means the Internal Revenue Code of 1986, as
amended, and any applicable regulations promulgated thereunder.
(c) "COMMITTEE" means a committee of the Board duly
appointed to administer the Plan and having such powers as shall be specified by
the Board. Unless the powers of the Committee have been specifically limited,
the Committee shall have all of the powers of the Board granted herein,
including, without limitation, the power to amend or terminate the Plan at any
time, subject to the terms of the Plan and any applicable limitations imposed by
law.
(d) "COMPANY" means The Vantive Corporation, a Delaware
corporation, or any successor corporation thereto.
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(e) "CONSULTANT" means any person, including an advisor,
engaged by a Participating Company to render services other than as an Employee
or a Director.
(f) "DIRECTOR" means a member of the Board or the board of
directors of any other Participating Company.
(g) "EMPLOYEE" means any person treated as an employee
(including an officer or a Director who is also treated as an employee) in the
records of a Participating Company; provided, however, that neither service as a
Director nor payment of a director's fee shall be sufficient to constitute
employment for purposes of the Plan.
(h) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(i) "FAIR MARKET VALUE" means, as of any date, if there is
then a public market for the Stock, the closing price of the Stock (or the mean
of the closing bid and asked prices of the Stock if the Stock is so reported
instead) as reported on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") System, the NASDAQ National Market System or such other
national or regional securities exchange or market system constituting the
primary market for the Stock. If the relevant date does not fall on a day on
which the Stock is trading on NASDAQ, the NASDAQ National Market System or other
national or regional securities exchange or market system, the date on which the
Fair Market Value shall be established shall be the last day on which the Stock
was so traded prior to the relevant date. If there is then no public market for
the Stock, the Fair Market Value on any relevant date shall be as determined by
the Board without regard to any restriction other than a restriction which, by
its terms, will never lapse.
(j) "OPTION" means a right to purchase Stock (subject to
adjustment as provided in Section 4.2) pursuant to the terms and conditions of
the Plan.
(k) "OPTIONEE" means a person who has been granted one or
more Options.
(l) "OPTION AGREEMENT" means a written agreement between
the Company and an Optionee setting forth the terms, conditions and restrictions
of the Option granted to the Optionee.
(m) "OUTSIDE DIRECTOR" means a Director of the Company who
is not an Employee.
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(n) "PARENT CORPORATION" means any present or future
"parent corporation" of the Company, as defined in Section 424(e) of the Code.
(o) "PARTICIPATING COMPANY" means the Company or any
Parent Corporation or Subsidiary Corporation.
(p) "PARTICIPATING COMPANY GROUP" means, at any point in
time, all corporations collectively which are then Participating Companies.
(q) "RULE 16b-3" means Rule 16b-3 as promulgated under the
Exchange Act, as amended from time to time, or any successor rule or regulation.
(r) "SERVICE" means the Optionee's service with the
Participating Company Group, whether in the capacity of an Employee, a Director
or a Consultant. The Optionee's Service shall not be deemed to have terminated
merely because of a change in the capacity in which the Optionee renders Service
to the Participating Company Group or a change in the Participating Company for
which the Optionee renders such Service, provided that there is no interruption
or termination of the Optionee's Service. The Optionee's Service shall be deemed
to have terminated either upon an actual termination of Service or upon the
corporation for which the Optionee performs Service ceasing to be a
Participating Company.
(s) "STOCK" means the common stock, par value $0.001, of
the Company, as adjusted from time to time in accordance with Section 4.2.
(t) "SUBSIDIARY CORPORATION" means any present or future
"subsidiary corporation" of the Company, as defined in Section 424(f) of the
Code.
2.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when otherwise indicated by the context, the
singular shall include the plural, the plural shall include the singular, and
use of the term "or" shall include the conjunctive as well as the disjunctive.
3. ADMINISTRATION.
3.1 ADMINISTRATION BY THE BOARD. The Plan shall be administered
by the Board, including any duly appointed Committee of the Board. All questions
of interpretation of the Plan or of any Option shall be determined by the Board,
and such determinations shall be final and binding upon all persons having an
interest in the Plan or such Option. Any officer of a Participating Company
shall have the authority to act on behalf of the Company with respect to any
matter, right, obligation, determination or election which is the responsibility
of or which is allocated to the Company herein, provided the officer has
apparent authority with respect to such matter, right, obligation, determination
or election.
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3.2 LIMITATIONS ON AUTHORITY OF THE BOARD. Notwithstanding any
other provision herein to the contrary, the Board shall have no authority,
discretion, or power to select the Outside Directors who will receive Options,
to set the exercise price of the Options, to determine the number of shares of
Stock to be subject to an Option or the time at which an Option shall be
granted, to establish the duration of an Option, or to alter any other terms or
conditions specified in the Plan, except in the sense of administering the Plan
subject to the provisions of the Plan.
4. SHARES SUBJECT TO PLAN.
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan shall be four hundred thousand (400,000) and shall
consist of authorized but unissued shares or reacquired shares of Stock or any
combination thereof. If an outstanding Option for any reason expires or is
terminated or canceled or shares of Stock acquired, subject to repurchase, upon
the exercise of an Option are repurchased by the Company, the shares of Stock
allocable to the unexercised portion of such Option, or such repurchased shares
of Stock, shall again be available for issuance under the Plan.
4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of
any stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or similar change in the capital structure of the
Company, appropriate adjustments shall be made in the number and class of shares
subject to the Plan, to the "Initial Option" and "Anniversary Option" (as
defined in Section 6.1), and to any outstanding Options, and in the exercise
price of any outstanding Options. If a majority of the shares which are of the
same class as the shares that are subject to outstanding Options are exchanged
for, converted into, or otherwise become (whether or not pursuant to a Transfer
of Control as defined in Section 8.1) shares of another corporation (the "NEW
SHARES"), the Board may unilaterally amend the outstanding Options to provide
that such Options are exercisable for New Shares. In the event of any such
amendment, the number of shares subject to, and the exercise price of, the
outstanding Options shall be adjusted in a fair and equitable manner as
determined by the Board, in its sole discretion. Notwithstanding the foregoing,
any fractional share resulting from an adjustment pursuant to this Section 4.2
shall be rounded down to the nearest whole number, and in no event may the
exercise price of any Option be decreased to an amount less than the par value,
if any, of the stock subject to the Option.
5. ELIGIBILITY AND TYPE OF OPTIONS.
5.1 PERSONS ELIGIBLE FOR OPTIONS. An Option shall be granted only
to a person who, at the time of grant, is an Outside Director.
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5.2 OPTIONS AUTHORIZED. Options shall be nonstatutory stock
options; that is, options which are not treated as incentive stock options
within the meaning of Section 422(b) of the Code.
6. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by Option
Agreements specifying the number of shares of Stock covered thereby, in such
form as the Board shall from time to time establish. Option Agreements may
incorporate all or any of the terms of the Plan by reference and shall comply
with and be subject to the following terms and conditions:
6.1 AUTOMATIC GRANT OF OPTIONS. Subject to execution by an
Outside Director of the appropriate Option Agreement, Options shall be granted
automatically and without further action of the Board, as follows:
(a) INITIAL OPTION. Each Outside Director shall be granted
an initial Option as follows (an "INITIAL OPTION"):
(i) Each Outside Director who was an Outside Director
on the Effective Date shall be granted an Option to purchase thirty thousand
(30,000) shares of Stock on the day following the first annual meeting of the
Company's stockholders after the Effective Date.
(ii) Each person who is first elected or appointed as
an Outside Director after the Effective Date shall be granted an Option to
purchase thirty thousand (30,000) shares of Stock on the date of such initial
election or appointment.
(b) ANNIVERSARY OPTION. Each Outside Director shall be
granted an Option to purchase ten thousand (10,000) shares of Stock (the
"ANNIVERSARY OPTION") on each anniversary of the date of grant of his or her
Initial Option.
(c) RIGHT TO DECLINE OPTION. Notwithstanding the
foregoing, any person may elect not to receive an Option by delivering written
notice of such election to the Board no later than the day prior to the date
such Option would otherwise be granted. A person so declining an Option shall
receive no payment or other consideration in lieu of such declined Option. A
person who has declined an Option may revoke such election by delivering written
notice of such revocation to the Board no later than the day prior to the date
such Option would be granted pursuant to Section 6.1(a) or (b), as the case may
be.
6.2 EXERCISE PRICE. The exercise price per share of Stock subject
to an Option shall be the Fair Market Value of a share of Stock on the date the
Option is granted.
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6.3 EXERCISE PERIOD. Each Option shall terminate and cease to be
exercisable on the date ten (10) years after the date of grant of the Option
unless earlier terminated pursuant to the terms of the Plan or the Option
Agreement.
6.4 RIGHT TO EXERCISE OPTIONS.
(a) INITIAL OPTION. Except as otherwise provided in the
Plan or in the Option Agreement, an Initial Option shall (i) first become
exercisable on the date which is six (6) months after the date on which the
Initial Option was granted (the "INITIAL OPTION VESTING DATE"); and (ii) be
exercisable on and after the Initial Option Vesting Date and prior to the
termination thereof in an amount equal to the number of shares of Stock
initially subject to the Initial Option multiplied by the Vested Ratio as set
forth below, less the number of shares previously acquired upon exercise
thereof. The Vested Ratio described in the preceding sentence shall be
determined as follows:
<TABLE>
<CAPTION>
Vested Ratio
------------
<S> <C>
Prior to Initial Option Vesting Date 0
On Initial Option Vesting Date, 1/8
provided the Optionee's Service
is continuous from the date of grant
of the Initial Option until the
Initial Option Vesting Date
Plus
For each full month of 1/48
of the Optionee's continuous
Service from the Initial Option
Vesting Date until the
Vested Ratio equals 1/1,
an additional
</TABLE>
(b) ANNIVERSARY OPTION. Except as otherwise provided in
the Plan or in the Option Agreement, an Anniversary Option shall (i) first
become exercisable on the date which is thirty-seven (37) months after the date
on which the Anniversary Option was granted (the "ANNIVERSARY OPTION VESTING
DATE"); and (ii) be exercisable on and after the Anniversary Option Vesting Date
and prior to the termination thereof in an amount equal to the number of shares
of Stock initially subject to the Anniversary Option multiplied by the Vested
Ratio as set forth below, less the number of shares previously acquired upon
exercise thereof. The Vested Ratio described in the preceding sentence shall be
determined as follows:
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<PAGE> 7
<TABLE>
<CAPTION>
Vested Ratio
------------
<S> <C>
Prior to Anniversary 0
Option Vesting Date
On Anniversary Option Vesting Date, 1/12
provided the Optionee's Service is
continuous from the date of grant of
the Anniversary Option until the
Anniversary Option Vesting Date
Plus
For each full month of 1/12
of the Optionee's continuous
Service from the Anniversary
Option Vesting Date until the
Vested Ratio equals 1/1, an additional
</TABLE>
6.5 PAYMENT OF EXERCISE PRICE.
(a) FORMS OF CONSIDERATION AUTHORIZED. Except as otherwise
provided below, payment of the exercise price for the number of shares of Stock
being purchased pursuant to any Option shall be made (i) in cash, by check, or
cash equivalent, (ii) by tender to the Company of shares of Stock owned by the
Optionee having a Fair Market Value not less than the exercise price, (iii) by
the assignment of the proceeds of a sale or loan with respect to some or all of
the shares being acquired upon the exercise of the Option (including, without
limitation, through an exercise complying with the provisions of Regulation T as
promulgated from time to time by the Board of Governors of the Federal Reserve
System) (a "CASHLESS EXERCISE"), or (iv) by any combination thereof.
(b) TENDER OF STOCK. Notwithstanding the foregoing, an
Option may not be exercised by tender to the Company of shares of Stock to the
extent such tender of Stock would constitute a violation of the provisions of
any law, regulation or agreement restricting the redemption of the Company's
stock. Unless otherwise provided by the Board, an Option may not be exercised by
tender to the Company of shares of Stock unless such shares either have been
owned by the Optionee for more than six (6) months or were not acquired,
directly or indirectly, from the Company.
(c) CASHLESS EXERCISE. The Company reserves, at any and
all times, the right, in the Company's sole and absolute discretion, to
establish, decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise.
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<PAGE> 8
6.6 TAX WITHHOLDING. The Company shall have the right, but not
the obligation, to deduct from the shares of Stock issuable upon the exercise of
an Option, or to accept from the Optionee the tender of, a number of whole
shares of Stock having a Fair Market Value equal to all or any part of the
federal, state, local and foreign taxes, if any, required by law to be withheld
by the Participating Company Group with respect to such Option or the shares
acquired upon exercise thereof. Alternatively or in addition, in its sole
discretion, the Company shall have the right to require the Optionee to make
adequate provision for any such tax withholding obligations of the Participating
Company Group arising in connection with the Option or the shares acquired upon
exercise thereof. The Company shall have no obligation to deliver shares of
Stock until the Participating Company Group's tax withholding obligations have
been satisfied.
7. STANDARD FORM OF OPTION AGREEMENT.
7.1 INITIAL OPTION. Unless otherwise provided for by the Board at
the time an Initial Option is granted, each Initial Option shall comply with and
be subject to the terms and conditions set forth in the form of Nonstatutory
Stock Option Agreement for Outside Directors (Initial Option) adopted by the
Board concurrently with its adoption of the Plan and as amended from time to
time.
7.2 ANNIVERSARY OPTION. Unless otherwise provided for by the
Board at the time an Anniversary Option is granted, each Anniversary Option
shall comply with and be subject to the terms and conditions set forth in the
form of Nonstatutory Stock Option Agreement for Outside Directors (Anniversary
Option) adopted by the Board concurrently with its adoption of the Plan and as
amended from time to time.
7.3 AUTHORITY TO VARY TERMS. Subject to the limitations set forth
in Section 3.2, the Board shall have the authority from time to time to vary the
terms of any of the standard forms of Option Agreement described in this Section
7 either in connection with the grant or amendment of an individual Option or in
connection with the authorization of a new standard form or forms; provided,
however, that the terms and conditions of any such new, revised or amended
standard form or forms of Option Agreement shall be in accordance with the terms
of the Plan. Such authority shall include, but not by way of limitation, the
authority to grant Options which are immediately exercisable subject to the
Company's right to repurchase any unvested shares of Stock acquired by the
Optionee upon the exercise of an Option in the event such Optionee's Service is
terminated for any reason. In no event, however, shall the Board be permitted to
vary the terms of any standard form of Option Agreement if such change would
cause the Plan to cease to qualify as a formula plan pursuant to Rule 16b-3 at
any such time as any class of equity security of the Company is registered
pursuant to Section 12 of the Exchange Act.
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<PAGE> 9
8. TRANSFER OF CONTROL.
8.1 DEFINITIONS.
(a) An "OWNERSHIP CHANGE EVENT" shall be deemed to have
occurred if any of the following occurs with respect to the Company:
(i) the direct or indirect sale or exchange in a single
or series of related transactions by the stockholders of the Company of more
than fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company is
a party;
(iii) the sale, exchange, or transfer of all or
substantially all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
(b) A "TRANSFER OF CONTROL" shall mean an Ownership Change
Event or a series of related Ownership Change Events (collectively, the
"TRANSACTION") wherein the stockholders of the Company immediately before the
Transaction do not retain immediately after the Transaction, in substantially
the same proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting stock of the Company or the corporation or corporations to
which the assets of the Company were transferred (the "TRANSFEREE
CORPORATION(s)"), as the case may be. For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting stock of one or more corporations which,
as a result of the Transaction, own the Company or the Transferee
Corporation(s), as the case may be, either directly or through one or more
subsidiary corporations. The Board shall have the right to determine whether
multiple sales or exchanges of the voting stock of the Company or multiple
Ownership Change Events are related, and its determination shall be final,
binding and conclusive.
8.2 EFFECT OF TRANSFER OF CONTROL ON OPTIONS. In the event of a
Transfer of Control, the surviving, continuing, successor, or purchasing
corporation or parent corporation thereof, as the case may be (the "ACQUIRING
CORPORATION"), may either assume the Company's rights and obligations under
outstanding Options or substitute for outstanding Options substantially
equivalent options for the Acquiring Corporation's stock. Any Options which are
neither assumed or substituted for by the Acquiring Corporation in connection
with the Transfer of Control nor exercised as of the date of the Transfer of
Control shall terminate and cease to be outstanding effective as of the date of
the Transfer of Control. Notwithstanding the foregoing, shares acquired
9
<PAGE> 10
upon exercise of an Option prior to the Transfer of Control and any
consideration received pursuant to the Transfer of Control with respect to such
shares shall continue to be subject to all applicable provisions of the Option
Agreement evidencing such Option except as otherwise provided in such Option
Agreement. Furthermore, notwithstanding the foregoing, if the corporation the
stock of which is subject to the outstanding Options immediately prior to an
Ownership Change Event described in Section 8.1(a)(i) constituting a Transfer of
Control is the surviving or continuing corporation and immediately after such
Ownership Change Event less than fifty percent (50%) of the total combined
voting power of its voting stock is held by another corporation or by other
corporations that are members of an affiliated group within the meaning of
Section 1504(a) of the Code without regard to the provisions of Section 1504(b)
of the Code, the outstanding Options shall not terminate.
9. NONTRANSFERABILITY OF OPTIONS. During the lifetime of the Optionee,
an Option shall be exercisable only by the Optionee or the Optionee's guardian
or legal representative. No Option shall be assignable or transferable by the
Optionee, except by will or by the laws of descent and distribution.
10. INDEMNIFICATION. In addition to such other rights of indemnification
as they may have as members of the Board or officers or employees of the
Participating Company Group, members of the Board and any officers or employees
of the Participating Company Group to whom authority to act for the Board is
delegated shall be indemnified by the Company against all reasonable expenses,
including attorneys' fees, actually and necessarily incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan, or any right
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such person is liable for gross
negligence, bad faith or intentional misconduct in duties; provided, however,
that within sixty (60) days after the institution of such action, suit or
proceeding, such person shall offer to the Company, in writing, the opportunity
at its own expense to handle and defend the same.
11. TERMINATION OR AMENDMENT OF PLAN. The Board may terminate or amend
the Plan at any time. However, subject to changes in the law or other legal
requirements that would permit otherwise, without the approval of the Company's
stockholders, there shall be (a) no increase in the total number of shares of
Stock that may be issued under the Plan (except by operation of the provisions
of Section 4.2), and (b) no expansion in the class of persons eligible to
receive Options. Furthermore, to the extent required by Rule 16b-3, provisions
of the Plan addressing eligibility to participate in the Plan and the amount,
price and timing of Options shall not be amended more than once every six (6)
months, other than to comport with changes in
10
<PAGE> 11
the Code, the Employee Retirement Income Security Act of 1974, as amended, or
the rules thereunder. In any event, no termination or amendment of the Plan may
adversely affect any then outstanding Option, or any unexercised portion
thereof, without the consent of the Optionee, unless such termination or
amendment is necessary to comply with any applicable law or government
regulation.
11
<PAGE> 12
PLAN HISTORY
June 28, 1995 Board adopts Plan, with an initial reserve of
200,000 shares.
July 28, 1995 Stockholders approve Plan, with an initial reserve
of 200,000 shares.
September 30, 1996 Board declared 2-for-1 stock dividend adjusting the
share reserve from 200,000 to 400,000 shares.
12
<PAGE> 1
EXHIBIT 99.3
THE VANTIVE CORPORATION
1997 NONSTATUTORY STOCK OPTION PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 ESTABLISHMENT. The Vantive Corporation 1997 Nonstatutory
Stock Option Plan (the "PLAN") is hereby established effective as of October 22,
1997 (the "EFFECTIVE DATE").
1.2 PURPOSE. The purpose of the Plan is to advance the interests
of the Participating Company Group and its stockholders by providing an
incentive to attract, retain and reward persons performing services for the
Participating Company Group and by motivating such persons to contribute to the
growth and profitability of the Participating Company Group.
1.3 TERM OF PLAN. The Plan shall continue in effect until the
earlier of its termination by the Board or the date on which all of the shares
of Stock available for issuance under the Plan have been issued and all
restrictions on such shares under the terms of the Plan and the agreements
evidencing Awards and Options granted under the Plan have lapsed.
2. DEFINITIONS AND CONSTRUCTION.
2.1 DEFINITIONS. Whenever used herein, the following terms shall
have their respective meanings set forth below:
(a) "AWARD" means a bonus payable to an Optionee in the
form of Stock pursuant to the terms and conditions of the Plan.
(b) "BOARD" means the Board of Directors of the Company.
If one or more Committees have been appointed by the Board to administer the
Plan, "BOARD" also means such Committee(s).
(c) "CODE" means the Internal Revenue Code of 1986, as
amended, and any applicable regulations promulgated thereunder.
(d) "COMMITTEE" means the Compensation Committee or other
committee of the Board duly appointed to administer the Plan and having such
powers as shall be specified by the Board. Unless the powers of the Committee
have been specifically limited, the Committee shall have all of the powers of
the Board granted herein, including, without limitation, the power to amend or
terminate the Plan at any time, subject to the terms of the Plan and any
applicable limitations imposed by law.
(e) "COMPANY" means The Vantive Corporation, a Delaware
corporation, or any successor corporation thereto.
1
<PAGE> 2
(f) "CONSULTANT" means any person, including an advisor,
engaged by a Participating Company to render services other than as an Employee
or a Director.
(g) "DIRECTOR" means a member of the Board.
(h) "DISABILITY" means the permanent and total disability
of the Optionee within the meaning of Section 22(e)(3) of the Code.
(i) "EMPLOYEE" means any person treated as an employee in
the records of a Participating Company; provided, however, that neither service
as a Director nor payment of a director's fee shall be sufficient to constitute
employment for purposes of the Plan. The Company shall determine in good faith
and in the exercise of its discretion whether an individual has become or has
ceased to be an Employee and the effective date of such individual's employment
or termination of employment, as the case may be. For purposes of an
individual's rights, if any, under the Plan as of the time of the Company's
determination, all such determinations by the Company shall be final, binding
and conclusive, notwithstanding that the Company or any governmental agency
subsequently makes a contrary determination.
(j) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
(k) "FAIR MARKET VALUE" means, as of any date, the value
of a share of Stock or other property as determined by the Board, in its sole
discretion, or by the Company, in its sole discretion, if such determination is
expressly allocated to the Company herein, subject to the following:
(i) If, on such date, there is a public market for
the Stock, the Fair Market Value of a share of Stock shall be the closing price
of a share of Stock (or the mean of the closing bid and asked prices of a share
of Stock if the Stock is so quoted instead) as quoted on the Nasdaq National
Market, the Nasdaq Small-Cap Market or such other national or regional
securities exchange or market system constituting the primary market for the
Stock, as reported in the Wall Street Journal or such other source as the
Company deems reliable. If the relevant date does not fall on a day on which the
Stock has traded on such securities exchange or market system, the date on which
the Fair Market Value shall be established shall be the last day on which the
Stock was so traded prior to the relevant date, or such other appropriate day as
shall be determined by the Board, in its sole discretion.
(ii) If, on such date, there is no public market
for the Stock, the Fair Market Value of a share of Stock shall be as determined
by the Board without regard to any restriction other than a restriction which,
by its terms, will never lapse.
(l) "NONSTATUTORY STOCK OPTION" means an Option not
intended to be an incentive stock option within the meaning of Section 422(b) of
the Code.
2
<PAGE> 3
(m) "OPTION" means a right to purchase Stock (subject to
adjustment as provided in Section 4.2) pursuant to the terms and conditions of
the Plan.
(n) "OPTION AGREEMENT" means a written agreement between
the Company and an Optionee setting forth the terms, conditions and restrictions
of the Option granted to the Optionee and any shares acquired upon the exercise
thereof.
(o) "OPTIONEE" means a person who has been granted one or
more Awards or Options.
(p) "PARENT CORPORATION" means any present or future
"parent corporation" of the Company, as defined in Section 424(e) of the Code.
(q) "PARTICIPATING COMPANY" means the Company or any
Parent Corporation or Subsidiary Corporation.
(r) "PARTICIPATING COMPANY GROUP" means, at any point in
time, all corporations collectively which are then Participating Companies.
(s) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(t) "SERVICE" means an Optionee's employment or service
with the Participating Company Group, whether in the capacity of an Employee, a
Director or a Consultant. An Optionee's Service shall not be deemed to have
terminated merely because of a change in the capacity in which the Optionee
renders Service to the Participating Company Group or a change in the
Participating Company for which the Optionee renders such Service, provided that
there is no interruption or termination of the Optionee's Service. Unless
otherwise designated by the Company or required by law, a leave of absence shall
not be treated as Service for purposes of determining vesting under the
Optionee's Option Agreement. An Optionee's Service shall be deemed to have
terminated either upon an actual termination of Service or upon the corporation
for which the Optionee performs Service ceasing to be a Participating Company.
Subject to the foregoing, the Company, in its sole discretion, shall determine
whether an Optionee's Service has terminated and the effective date of such
termination.
(u) "STOCK" means the common stock of the Company, as
adjusted from time to time in accordance with Section 4.2.
(v) "STOCK BONUS AGREEMENT" means a written agreement
between the Company and an Optionee setting forth the terms, conditions and
restrictions applicable to shares of Stock to be issued to the Optionee pursuant
to an Award.
(w) "SUBSIDIARY CORPORATION" means any present or future
"subsidiary corporation" of the Company, as defined in Section 424(f) of the
Code.
2.2 CONSTRUCTION. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation of any
provision of the Plan. Except when
3
<PAGE> 4
otherwise indicated by the context, the singular shall include the plural and
the plural shall include the singular. Use of the term "or" is not intended to
be exclusive, unless the context clearly requires otherwise.
3. ADMINISTRATION.
3.1 ADMINISTRATION BY THE BOARD. The Plan shall be administered
by the Board. All questions of interpretation of the Plan or of any Award or
Option shall be determined by the Board, and such determinations shall be final
and binding upon all persons having an interest in the Plan or such Award or
Option. Any officer of a Participating Company shall have the authority to act
on behalf of the Company with respect to any matter, right, obligation,
determination or election which is the responsibility of or which is allocated
to the Company herein, provided the officer has apparent authority with respect
to such matter, right, obligation, determination or election.
3.2 POWERS OF THE BOARD. In addition to any other powers set
forth in the Plan and subject to the provisions of the Plan, the Board shall
have the full and final power and authority, in its sole discretion:
(a) to determine the persons to whom, and the time or
times at which, Awards and Options shall be granted and the number of shares of
Stock to be subject to each Award and Option;
(b) to determine the Fair Market Value of shares of Stock
or other property;
(c) to determine the terms, conditions and restrictions
applicable to each Award and Option (which need not be identical) and any shares
acquired upon the exercise thereof, including, without limitation, (i) the
exercise price of the Option, (ii) the method of payment for shares purchased
upon the exercise of the Option, (iii) the method for satisfaction of any tax
withholding obligation arising in connection with the Award or Option or such
shares, including by the withholding or delivery of shares of stock, (iv) the
timing, terms and conditions of the exercisability of the Option or the vesting
of any shares acquired upon the exercise thereof, (v) the time of the expiration
of the Option, (vi) the effect of the Optionee's termination of Service with the
Participating Company Group on any of the foregoing, and (vii) all other terms,
conditions and restrictions applicable to the Option or such shares not
inconsistent with the terms of the Plan;
(d) to approve one or more forms of Option Agreement or
Stock Bonus Agreement;
(e) to amend, modify, extend, cancel, renew, or grant a
new Option in substitution for, any Option or to waive any restrictions or
conditions applicable to any Option or any shares acquired upon the exercise
thereof;
4
<PAGE> 5
(f) to accelerate, continue, extend or defer the
exercisability of any Option or the vesting of any shares acquired upon the
exercise thereof, including with respect to the period following an Optionee's
termination of Service with the Participating Company Group;
(g) to delegate to any proper officer of the Company the
authority to grant one or more Options, without further approval of the Board,
to any person eligible pursuant to Section 5; provided, however, that (i) such
Options shall not be granted to any one person within any fiscal year of the
Company for more than 50,000 shares in the aggregate, (ii) the exercise price
per share of each such Option shall be equal to the Fair Market Value per share
of the Stock on the effective date of grant (or, if the Stock has not traded on
such date, on the last day preceding the effective date of grant on which the
Stock was traded), and (iii) each such Option shall be subject to the terms and
conditions of the appropriate standard form of Option Agreement approved by the
Board and shall conform to the provisions of the Plan and such other guidelines
as shall be established from time to time by the Board;
(h) to prescribe, amend or rescind rules, guidelines and
policies relating to the Plan, or to adopt supplements to, or alternative
versions of, the Plan, including, without limitation, as the Board deems
necessary or desirable to comply with the laws of, or to accommodate the tax
policy or custom of, foreign jurisdictions whose citizens may be granted Awards
or Options; and
(i) to correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any Option Agreement or Stock Bonus
Agreement and to make all other determinations and take such other actions with
respect to the Plan or any Award or Option as the Board may deem advisable to
the extent consistent with the Plan and applicable law.
4. SHARES SUBJECT TO PLAN.
4.1 MAXIMUM NUMBER OF SHARES ISSUABLE. Subject to adjustment as
provided in Section 4.2, the maximum aggregate number of shares of Stock that
may be issued under the Plan shall be two million five hundred thousand
(2,500,000) and shall consist of authorized but unissued or reacquired shares of
Stock or any combination thereof. If an outstanding Option for any reason
expires or is terminated or canceled, or if shares of Stock are acquired
pursuant to the Plan are forfeited to or repurchased by the Company, the shares
of Stock allocable to the unexercised portion of such Option or such forfeited
or repurchased shares of Stock shall again be available for issuance under the
Plan.
4.2 ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. In the event of
any stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification or similar change in the capital structure of the
Company, appropriate adjustments shall be made in the number and class of shares
subject to the Plan and to any outstanding Awards and Options, in the share
limit set forth in Section 3.2(g) and in the exercise price per share of any
outstanding Options. If a majority of the shares which are of the same class as
the shares that are subject to outstanding Options are exchanged for, converted
into, or otherwise become (whether or not pursuant to an Ownership Change Event,
as defined in Section 9.1) shares of another corporation
5
<PAGE> 6
(the "NEW SHARES"), the Board may unilaterally amend the outstanding Options to
provide that such Options are exercisable for New Shares. In the event of any
such amendment, the number of shares subject to, and the exercise price per
share of, the outstanding Options shall be adjusted in a fair and equitable
manner as determined by the Board, in its sole discretion. Notwithstanding the
foregoing, any fractional share resulting from an adjustment pursuant to this
Section 4.2 shall be rounded up or down to the nearest whole number, as
determined by the Board, and in no event may the exercise price of any Option be
decreased to an amount less than the par value, if any, of the stock subject to
the Option. The adjustments determined by the Board pursuant to this Section 4.2
shall be final, binding and conclusive.
5. ELIGIBILITY AND OPTION LIMITATIONS.
5.1 PERSONS ELIGIBLE FOR AWARDS AND OPTIONS. Awards and Options
may be granted only to Employees and Consultants. For purposes of the foregoing
sentence, "Employees" and "Consultants" shall include prospective Employees and
prospective Consultants to whom Options are granted in connection with written
offers of employment or other service relationship with the Participating
Company Group. However, notwithstanding any other provision herein to the
contrary, no person shall be eligible to be granted an Award or Option under the
Plan whose eligibility would require approval of the Plan by the stockholders of
the Company under any law or regulation or the rules of any stock exchange or
market system upon which the Stock may then be listed. If not inconsistent with
any such law, regulation or rule, an Award or Option may be granted to a person,
not previously employed by the Company, as an inducement essential to entering
into an employment contract with the Company. Eligible persons may be granted
more than one (1) Option.
5.2 OPTIONS AUTHORIZED. Options granted under the Plan may only
be Nonstatutory Stock Options.
6. TERMS AND CONDITIONS OF OPTIONS.
Options shall be evidenced by Option Agreements specifying the
number of shares of Stock covered thereby, in such form as the Board shall from
time to time establish. No Option or purported Option shall be a valid and
binding obligation of the Company unless evidenced by a fully executed Option
Agreement. Option Agreements may incorporate all or any of the terms of the Plan
by reference and shall comply with and be subject to the following terms and
conditions:
6.1 EXERCISE PRICE. The exercise price for each Option shall be
established in the sole discretion of the Board; provided, however, that the
exercise price per share shall be not less than eighty-five percent (85%) of the
Fair Market Value of a share of Stock on the effective date of grant of the
Option. Notwithstanding the foregoing, an Option may be granted with an exercise
price lower than the minimum exercise price set forth above if such Option is
granted pursuant to an assumption or substitution for another option in the
manner described in Section 424(a) of the Code.
6
<PAGE> 7
6.2 EXERCISE PERIOD. Options shall be exercisable at such time or
times, or upon such event or events, and subject to such terms, conditions,
performance criteria, and restrictions as shall be determined by the Board and
set forth in the Option Agreement evidencing such Option; provided, however,
that no Option granted to a prospective Employee or prospective Consultant may
become exercisable prior to the date on which such person commences Service with
a Participating Company. Unless otherwise specified by the Board in the grant of
an Option, any Option granted hereunder shall have a term of ten (10) years from
the effective date of the grant of the Option.
6.3 PAYMENT OF EXERCISE PRICE.
(a) FORMS OF CONSIDERATION AUTHORIZED. Except as otherwise
provided below, payment of the exercise price for the number of shares of Stock
being purchased pursuant to any Option shall be made (i) in cash, by check, or
cash equivalent, (ii) by tender to the Company, or attestation to the ownership,
of shares of Stock owned by the Optionee having a Fair Market Value (as
determined by the Company without regard to any restrictions on transferability
applicable to such stock by reason of federal or state securities laws or
agreements with an underwriter for the Company) not less than the exercise
price, (iii) by the assignment of the proceeds of a sale or loan with respect to
some or all of the shares being acquired upon the exercise of the Option
(including, without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System) (a "CASHLESS EXERCISE"), (iv) provided
that the Optionee is an Employee, by cash for a portion of the aggregate
exercise price not less than the par value of the shares being acquired and the
Optionee's promissory note in a form approved by the Company for the balance of
the aggregate exercise price, (v) by such other consideration as may be approved
by the Board from time to time to the extent permitted by applicable law, or
(vi) by any combination thereof. The Board may at any time or from time to time,
by adoption of or by amendment to the standard forms of Option Agreement
described in Section 8, or by other means, grant Options which do not permit all
of the foregoing forms of consideration to be used in payment of the exercise
price or which otherwise restrict one or more forms of consideration.
(b) TENDER OF STOCK. Notwithstanding the foregoing, an
Option may not be exercised by tender to the Company, or attestation to the
ownership, of shares of Stock to the extent such tender, or attestation to the
ownership, of Stock would constitute a violation of the provisions of any law,
regulation or agreement restricting the redemption of the Company's stock.
Unless otherwise provided by the Board, an Option may not be exercised by tender
to the Company, or attestation to the ownership, of shares of Stock unless such
shares either have been owned by the Optionee for more than six (6) months or
were not acquired, directly or indirectly, from the Company.
(c) CASHLESS EXERCISE. The Company reserves, at any and
all times, the right, in the Company's sole and absolute discretion, to
establish, decline to approve or terminate any program or procedures for the
exercise of Options by means of a Cashless Exercise.
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<PAGE> 8
(d) PAYMENT BY PROMISSORY NOTE. No promissory note shall
be permitted if the exercise of an Option using a promissory note would be a
violation of any law. Any permitted promissory note shall be on such terms as
the Board shall determine at the time the Option is granted. The Board shall
have the authority to permit or require the Optionee to secure any promissory
note used to exercise an Option with the shares of Stock acquired upon the
exercise of the Option or with other collateral acceptable to the Company.
Unless otherwise provided by the Board, if the Company at any time is subject to
the regulations promulgated by the Board of Governors of the Federal Reserve
System or any other governmental entity affecting the extension of credit in
connection with the Company's securities, any promissory note shall comply with
such applicable regulations, and the Optionee shall pay the unpaid principal and
accrued interest, if any, to the extent necessary to comply with such applicable
regulations.
6.4 TAX WITHHOLDING. The Company shall have the right, but not
the obligation, to deduct from the shares of Stock issuable upon the exercise of
an Option, or to accept from the Optionee the tender of, a number of whole
shares of Stock having a Fair Market Value, as determined by the Company, equal
to all or any part of the federal, state, local and foreign taxes, if any,
required by law to be withheld by the Participating Company Group with respect
to such Option or the shares acquired upon the exercise thereof. Alternatively
or in addition, in its sole discretion, the Company shall have the right to
require the Optionee, through payroll withholding, cash payment or otherwise,
including by means of a Cashless Exercise, to make adequate provision for any
such tax withholding obligations of the Participating Company Group arising in
connection with the Option or the shares acquired upon the exercise thereof. The
Company shall have no obligation to deliver shares of Stock until the
Participating Company Group's tax withholding obligations have been satisfied by
the Optionee.
6.5 EFFECT OF TERMINATION OF SERVICE.
(a) OPTION EXERCISABILITY. Subject to earlier termination
of the Option as otherwise provided herein, an Option shall be exercisable after
an Optionee's termination of Service as follows:
(i) DISABILITY. If the Optionee's Service with the
Participating Company Group is terminated because of the Disability of the
Optionee, the Option, to the extent unexercised and exercisable on the date on
which the Optionee's Service terminated, may be exercised by the Optionee (or
the Optionee's guardian or legal representative) at any time prior to the
expiration of twelve (12) months (or such longer or shorter period of time as
determined by the Board, in its sole discretion) after the date on which the
Optionee's Service terminated, but in any event no later than the date of
expiration of the Option's term as set forth in the Option Agreement evidencing
such Option (the "OPTION EXPIRATION DATE").
(ii) DEATH. If the Optionee's Service with the
Participating Company Group is terminated because of the death of the Optionee,
the Option, to the extent unexercised and exercisable on the date on which the
Optionee's Service terminated, may be exercised by the Optionee's legal
representative or other person who acquired the right to exercise the Option by
reason of the Optionee's death at any time prior to the expiration of
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twelve (12) months (or such longer or shorter period of time as determined by
the Board, in its sole discretion) after the date on which the Optionee's
Service terminated, but in any event no later than the Option Expiration Date.
The Optionee's Service shall be deemed to have terminated on account of death if
the Optionee dies within three (3) months after the Optionee's termination of
Service.
(iii) OTHER TERMINATION OF SERVICE. If the
Optionee's Service with the Participating Company Group terminates for any
reason, except Disability or death, the Option, to the extent unexercised and
exercisable by the Optionee on the date on which the Optionee's Service
terminated, may be exercised by the Optionee within three (3) months (or such
longer or shorter period of time as determined by the Board, in its sole
discretion) after the date on which the Optionee's Service terminated, but in
any event no later than the Option Expiration Date.
(b) EXTENSION IF EXERCISE PREVENTED BY LAW.
Notwithstanding the foregoing, if the exercise of an Option within the
applicable time periods set forth in Section 6.5(a) is prevented by the
provisions of Section 13 below, the Option shall remain exercisable until three
(3) months after the date the Optionee is notified by the Company that the
Option is exercisable, but in any event no later than the Option Expiration
Date.
(c) EXTENSION IF OPTIONEE SUBJECT TO SECTION 16(b).
Notwithstanding the foregoing, if a sale within the applicable time periods set
forth in Section 6.5(a) of shares acquired upon the exercise of the Option would
subject the Optionee to suit under Section 16(b) of the Exchange Act, the Option
shall remain exercisable until the earliest to occur of (i) the tenth (10th) day
following the date on which a sale of such shares by the Optionee would no
longer be subject to such suit, (ii) the one hundred and ninetieth (190th) day
after the Optionee's termination of Service, or (iii) the Option Expiration
Date.
7. TERMS AND CONDITIONS OF AWARDS.
Awards shall be evidenced by Stock Bonus Agreements specifying
the number of shares of Stock covered thereby. No Award or purported Award shall
be a valid and binding obligation of the Company unless evidenced by a fully
executed Stock Bonus Agreement. Stock Bonus Agreements may incorporate all or
any of the terms of the Plan by reference and shall comply with and be subject
to the following terms and conditions:
7.1 NO MONETARY PAYMENT REQUIRED. No monetary payment (other than
applicable withholding taxes) shall be required as a condition of receiving an
Award.
7.2 TAX WITHHOLDING. The Company shall have the right, but not
the obligation, to deduct from the payment of any Award, or to accept from the
Optionee the tender of, a number of whole shares of Stock having a fair market
value, as determined by the Company, equal to all or any part of the federal,
state, local and foreign taxes, if any, required by law to be withheld by the
Participating Company Group with respect to such Award. Alternatively or in
addition, in its sole discretion, the Company shall have the right to require
the Optionee, through payroll withholding, cash payment or otherwise to make
adequate provision
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for any such tax withholding obligations of the Participating Company Group
arising in connection with the Award. The Company shall have no obligation to
deliver shares of Stock or to release shares of Stock from an escrow established
pursuant to the Stock Bonus Agreement until the Participating Company Group's
tax withholding obligations have been satisfied.
7.3 VESTING AND RESTRICTIONS ON TRANSFER. Shares issued pursuant
to any Award may, but need not, be made subject to vesting conditioned upon the
satisfaction of such Service requirements, performance goals, or other
restrictions (the "VESTING RESTRICTIONS") as shall be determined by the Board
and set forth in the Stock Bonus Agreement evidencing such Award.
7.4 REPURCHASE RIGHTS. Shares issued under the Plan may be
subject to a right of first refusal, one or more repurchase options, or other
conditions and restrictions as determined by the Board in its sole discretion at
the time the Award is granted. The Company shall have the right to assign at any
time any repurchase right it may have, whether or not such right is then
exercisable, to one or more persons as may be selected by the Company.
7.5 VOTING RIGHTS; DIVIDENDS. During such time a share is subject
to Vesting Restrictions, the Optionee shall have all of the rights of a
shareholder of the Company holding such share, including the right to vote the
hare and to receive all dividends and other distributions paid with respect to
such share; provided, however, that if any such dividends or distributions are
paid in shares of Stock, such shares shall be subject to the same Vesting
Restrictions as the shares of Stock with respect to which they were paid.
7.6 EFFECT OF TERMINATION OF SERVICE. If an Optionee's Service
with the Participating Company Group terminates for any reason, whether
voluntary or involuntary (including the Optionee's death or Disability), the
Optionee shall forfeit to the Company shares of Stock acquired by the Optionee
pursuant to an Award which remain subject to Vesting Restrictions as of the date
of the Optionee's termination of Service.
7.7 NONTRANSFERABILITY OF AWARD. During the lifetime of the
Optionee, all rights with respect the Optionee's participation in the Plan shall
be personal to the Optionee, and no rights or interest therein may be assigned
or transferred in any manner except by will or by the laws of descent and
distribution. Following the death of an Optionee, any Award payable to the
Optionee shall paid to the Optionee's legal representative.
8. STANDARD FORMS OF OPTION AND STOCK BONUS AGREEMENT.
8.1 NONSTATUTORY STOCK OPTION AGREEMENT. Unless otherwise
provided by the Board at the time the Option is granted, each Option shall
comply with and be subject to the terms and conditions set forth in the standard
form of Nonstatutory Stock Option Agreement adopted by the Board concurrently
with its adoption of the Plan and as amended from time to time.
8.2 STOCK BONUS AGREEMENT. Unless otherwise provided by the Board
at the time the Award is granted, each Award shall comply with and be subject to
the terms and
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conditions set forth in the standard form of Stock Bonus Agreement adopted by
the Board and as amended from time to time.
8.3 AUTHORITY TO VARY TERMS. The Board shall have the authority
from time to time to vary the terms of any standard forms of Option Agreement
and Stock Bonus Agreement described in this Section 8 either in connection with
the grant or amendment of an individual Option or Award or in connection with
the authorization of a new standard form or forms; provided, however, that the
terms and conditions of any such new, revised or amended standard form or forms
of Option Agreement or Stock Bonus Agreement are not inconsistent with the terms
of the Plan.
9. CHANGE IN CONTROL.
9.1 DEFINITIONS.
(a) An "OWNERSHIP CHANGE EVENT" shall be deemed to have
occurred if any of the following occurs with respect to the Company:
(i) the direct or indirect sale or exchange in a
single or series of related transactions by the stockholders of the Company of
more than fifty percent (50%) of the voting stock of the Company;
(ii) a merger or consolidation in which the Company
is a party;
(iii) the sale, exchange, or transfer of all or
substantially all of the assets of the Company; or
(iv) a liquidation or dissolution of the Company.
(b) A "CHANGE IN CONTROL" shall mean an Ownership Change
Event or a series of related Ownership Change Events (collectively, the
"TRANSACTION") wherein the stockholders of the Company immediately before the
Transaction do not retain immediately after the Transaction, in substantially
the same proportions as their ownership of shares of the Company's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting stock of the Company or the corporation or corporations to
which the assets of the Company were transferred (the "TRANSFEREE
CORPORATION(s)"), as the case may be. For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting stock of one or more corporations which,
as a result of the Transaction, own the Company or the Transferee
Corporation(s), as the case may be, either directly or through one or more
subsidiary corporations. The Board shall have the right to determine whether
multiple sales or exchanges of the voting stock of the Company or multiple
Ownership Change Events are related, and its determination shall be final,
binding and conclusive.
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9.2 EFFECT OF CHANGE IN CONTROL ON OPTIONS. In the event of a
Change in Control, the surviving, continuing, successor, or purchasing
corporation or parent corporation thereof, as the case may be (the "ACQUIRING
CORPORATION"), may either assume the Company's rights and obligations under
outstanding Options or substitute for outstanding Options substantially
equivalent options for the Acquiring Corporation's stock. For purposes of this
Section 9.2, an Option shall be deemed assumed if, following the Change in
Control, the Option confers the right to purchase in accordance with its terms
and conditions, for each share of Stock subject to the Option immediately prior
to the Change in Control, the consideration (whether stock, cash or other
securities or property) to which a holder of a share of Stock on the effective
date of the Change in Control was entitled. Any Options which are neither
assumed or substituted for by the Acquiring Corporation in connection with the
Change in Control nor exercised as of the date of the Change in Control shall
terminate and cease to be outstanding effective as of the date of the Change in
Control. Notwithstanding the foregoing, if the corporation the stock of which is
subject to the outstanding Options immediately prior to an Ownership Change
Event described in Section 9.1(a)(i) constituting a Change in Control is the
surviving or continuing corporation and immediately after such Ownership Change
Event less than fifty percent (50%) of the total combined voting power of its
voting stock is held by another corporation or by other corporations that are
members of an affiliated group within the meaning of Section 1504(a) of the Code
without regard to the provisions of Section 1504(b) of the Code, the outstanding
Options shall not terminate unless the Board otherwise provides in its sole
discretion.
10. PROVISION OF INFORMATION.
Each Optionee shall be given access to information concerning the
Company equivalent to that information generally made available to the Company's
common stockholders.
11. NONTRANSFERABILITY OF OPTIONS.
During the lifetime of the Optionee, an Option shall be
exercisable only by the Optionee or the Optionee's guardian or legal
representative. No Option shall be assignable or transferable by the Optionee,
except by will or by the laws of descent and distribution.
12. COMPLIANCE WITH SECURITIES LAW.
The grant of Awards and Options and the issuance of shares of
Stock pursuant to Awards and upon exercise of Options shall be subject to
compliance with all applicable requirements of federal, state or foreign law
with respect to such securities. Options may not be exercised if the issuance of
shares of Stock upon exercise would constitute a violation of any applicable
federal, state or foreign securities laws or other law or regulations or the
requirements of any stock exchange or market system upon which the Stock may
then be listed. In addition, no Option may be exercised unless (a) a
registration statement under the Securities Act shall at the time of exercise of
the Option be in effect with respect to the shares issuable upon exercise of the
Option or (b) in the opinion of legal counsel to the Company, the shares
issuable upon exercise of the Option may be issued in accordance with the terms
of an applicable exemption from the registration requirements of the Securities
Act. The inability of the Company to obtain
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from any regulatory body having jurisdiction the authority, if any, deemed by
the Company's legal counsel to be necessary to the lawful issuance and sale of
any shares hereunder shall relieve the Company of any liability in respect of
the failure to issue or sell such shares as to which such requisite authority
shall not have been obtained. As a condition to the exercise of any Option, the
Company may require the Optionee to satisfy any qualifications that may be
necessary or appropriate, to evidence compliance with any applicable law or
regulation and to make any representation or warranty with respect thereto as
may be requested by the Company.
13. INDEMNIFICATION.
In addition to such other rights of indemnification as they may
have as members of the Board or officers or employees of the Participating
Company Group, members of the Board and any officers or employees of the
Participating Company Group to whom authority to act for the Board or the
Company is delegated shall be indemnified by the Company against all reasonable
expenses, including attorneys' fees, actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in connection
with any appeal therein, to which they or any of them may be a party by reason
of any action taken or failure to act under or in connection with the Plan, or
any right granted hereunder, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal counsel
selected by the Company) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such person is liable
for gross negligence, bad faith or intentional misconduct in duties; provided,
however, that within sixty (60) days after the institution of such action, suit
or proceeding, such person shall offer to the Company, in writing, the
opportunity at its own expense to handle and defend the same.
14. TERMINATION OR AMENDMENT OF PLAN.
The Board may terminate or amend the Plan at any time. However,
no termination or amendment of the Plan may adversely affect any then
outstanding Award or Option or any unexercised portion thereof, without the
consent of the Optionee, unless such termination or amendment is necessary to
comply with any applicable law, regulation or rule.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies
that the foregoing is the Plan as duly adopted by the Board on October 22, 1997
and amended by the Board through September 30, 1998.
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PLAN HISTORY
October 22, 1997 Board adopts Plan, with an initial share reserve of
500,000 shares.
March 27, 1998 Board approves a 800,000 share reserve increase
(from 500,000 to 1,300,000 shares)
September 16, 1998 Board amends Plan to permit grant of stock bonus
awards.
September 30, 1998 Board amends Plan to increase share reserve by
1,200,000 shares (from 1,300,000 to 2,500,000
shares)
December 16, 1998 Board amends Plan to increase share reserve by
1,250,000 shares(from 2,500,000 to 3,750,000
shares)
May 19, 1999 Board amends Plan to increase share reserve by
1,200,000 shares (from 3,750,000 to 4,950,000
shares)
