<PAGE>
As filed with the Securities and Exchange Commission on September 11, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
BARRA, INC.
(Exact name of registrant as specified in its charter)
California 94-2993326
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2100 Milvia Street
Berkeley, CA 94704-1113
(Address of principal executive offices) (Zip Code)
BARRA, INC. DIRECTORS OPTION PLAN
(Full title of the Plan)
James D. Kirsner
Chief Financial Officer
BARRA, Inc.
2100 Milvia Street, Berkeley, CA 94704-1113
(510)548-5442
(name, address, including zip code and telephone number,
including area code, of agent for service)
Copy to: Maria Louisa Hekker, Esq.
Chief Legal Officer
BARRA, Inc.
2100 Milvia Street, Berkeley, CA 94704-1113
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 100,000(1) $36.00(2) $3,600,000(2) $1,090.80
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated maximum aggregate number of shares of BARRA, Inc. Common Stock
that may be awarded and/or sold pursuant to the Plan.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) on the basis of the average high and low prices for the
Common Stock on September 8, 1997 as reported on the NASDAQ National Market
System.
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1
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The document(s) containing the information specified in Item 1
will be sent or given to participants in the BARRA, Inc. Directors Option
Plan (the "Plan") as specified in Rule 428(b)(1) and is not required to be
filed as part of the registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2
will be sent or given to participants in the Plan as specified in Rule
428(b)(1) and is not required to be filed as part of this registration
statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement covers shares of Common Stock of BARRA, Inc. (the
"Registrant") that have been authorized for issuance pursuant to the
Registrant's Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Commission.
(a) The Registrant's Annual Report filed on Form 10-K for the fiscal year
ended March 31, 1997.
(b) The Registrant's proxy statement in connection with the Annual Meeting
of Shareholders of Common Stock of the Registrant held on July 31,
1997.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant's Annual Report on Form 10-K referred to in (a) above.
(d) The description of the Registrant's Common Stock, no par value,
contained in the Registrant's Registration Statement on Form 8-A,
dated November 6, 1991, filed pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
All documents filed by the Registrant subsequently pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act before the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 204 (a) and 317 of the California General Corporation Law
authorize a corporation to indemnify its directors and officers against certain
liabilities and to eliminate their liability to the corporation except in
certain
2
<PAGE>
circumstances. The Registrant's Bylaws provide that the Registrant will
indemnify its directors, officers, employees and other agents to the fullest
extent permitted by California law. The Registrant is also empowered under its
Bylaws to purchase insurance on behalf of any person whom it is required or
permitted to indemnify, and it currently carries such liability insurance for
the benefit of its directors and executive officers.
In addition, the Registrant's Amended and Restated Articles of
Incorporation contain a provision limiting the liability of the Registrant's
directors for monetary damages for breach of the directors' duty of care to the
Registrant and its shareholders to the fullest extent permitted by California
law. This provision does not eliminate the directors' duty of care, and in
appropriate circumstances equitable remedies such as an injunction or other
forms of non-monetary relief would remain available under California law.
Moreover, under California law each director is subject to liability for breach
of the director's duty of loyalty to the Company, for acts or omissions
involving intentional misconduct or knowing violations of law, for acts or
omissions that the director believes to be contrary to the best interest of the
Company or its shareholders, for any transaction from which the director derived
an improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Registrant or its shareholders when the
director was aware or should have been aware of a risk of serious injury to the
Registrant or its shareholders, for acts or omissions that constitute an
unexcused pattern of inattention that amount to an abdication of the director's
duty to the Registrant or its shareholders, for improper transactions between
the director and the Registrant, for improper distributions to shareholders, and
for loans to officers and directors. The Registrant has entered into agreements
with its directors and certain officers indemnifying them against losses they
may incur in legal proceedings arising from their service to the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
REGULATION S-K REFERENCE TO PRIOR FILING OR
EXHIBIT NO. DESCRIPTION EXHIBIT NO. ATTACHED HERETO
- -------------- ---------------------------- ---------------------------
4.1 Amended and Restated Articles of Incorporated by reference
Incorporation from an exhibit of
corresponding number to
Registrant's S-8
Registration Statement
(No.33-65558)
4.2 Bylaws, as amended Incorporated by reference
from Exhibit 3.1 of the
Quarterly Report on
Form 10-Q of the
Registrant for the period
ended December 31, 1995.
4.3 BARRA, Inc. Directors Option Plan Attached as Exhibit 4.3.
4.4 Form of Stock Option Agreement Attached as Exhibit 4.4.
5.1 Opinion of Graham & James LLP Attached as Exhibit 5.1.
23.1 Consent of Deloitte & Touche LLP Attached as Exhibit 23.1.
23.2 Consent of Graham & James LLP Reference is made to
Exhibit 5.1.
24.0 Power of Attorney Reference is made to
p. 6
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
3
<PAGE>
(i) To include any prospectus required by Section 10 (a)(3)
of the Securities Act of 1933 (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 end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price are set forth in the "Calculation of
Registration Fee" table in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this
Registration Statement.
(2) 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 bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities which remain unsold at the
termination of the offering.
(4) 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
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
(5) 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
Securities 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 Securities Act and will be governed by the final adjudication
of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Berkeley, State of California, on September 10,
1997.
BARRA, INC.
By /s/ Andrew Rudd
-----------------------------------
Andrew Rudd
Chairman, Chief Executive Officer
5
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Andrew Rudd and James D. Kirsner, or either of
them, as his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof. This power
of attorney expires on September 9, 1998.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Andrew Rudd Chief Executive Officer, Chairman
- ----------------------- of the Board and Director
Andrew Rudd (Principal Executive Officer) September 10, 1997
/s/ James D. Kirsner Chief Financial Officer (Principal
- ----------------------- Financial and Accounting Officer)
James D. Kirsner September 10, 1997
/s/ Ronald J. Lanstein Director and Vice Chairman September 10, 1997
- -----------------------
Ronald J. Lanstein
/s/ A. George Battle Director September 10, 1997
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A. George Battle
/s/ John F. Casey Director September 10, 1997
- -----------------------
John F. Casey
/s/ M. Blair Hull Director September 10, 1997
- -----------------------
M. Blair Hull
/s/ Norman J. Laboe Director September 10, 1997
- -----------------------
Norman J. Laboe
6
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT DESCRIPTION SEQUENTIAL PAGE NUMBER
- -------------- ------------------- ----------------------
4.1 Amended and Restated Articles of
Incorporation (1) N/A
4.2 Bylaws, as amended(2) N/A
4.3 BARRA, Inc. Directors Option Plan 8
4.4 Forms of Stock Option Agreement 19
5.1 Opinion of Graham & James LLP 32
23.1 Consent of Deloitte & Touche LLP 35
23.2 Consent of Graham & James LLP
(Reference is made to Exhibit 5) N/A
24.0 Power of Attorney (Reference is made
to page 6) N/A
(1) Incorporated by reference to an exhibit of corresponding number to
Registrant's S-8 Registration Statement (No. 33-65558).
(2) Incorporated by reference to Exhibit Number 3.1 to Registrant's
Form 10-Q Quarterly Report for the quarterly period ended December 31,
1995.
<PAGE>
EXHIBIT 4.3
BARRA, INC.
DIRECTORS OPTION PLAN
SECTION 1
PURPOSE
The purpose of the BARRA, Inc. Directors Option Plan is to provide a means
whereby BARRA, Inc., a California corporation (the "Corporation"), may attract
and retain able persons as members of the Board and to provide a means whereby
those Board (as defined below) members can acquire and maintain stock ownership,
thereby strengthening their concern for the long-term welfare of the
Corporation. A further purpose of the Plan (as defined below) is to provide
such Board members with additional incentive and reward opportunities designed
to enhance the profitable growth of the Corporation over the long term.
Accordingly, the Plan provides for granting Incentive Stock Options (as defined
below), options which do not constitute Incentive Stock Options, or any
combination of the foregoing, as is best suited to the circumstances of the
particular Board member as provided herein.
SECTION 2
DEFINITIONS
The following definitions shall be applicable during the term of the Plan
unless specifically modified by any paragraph:
(a) AWARD means, individually or collectively, any Option granted pursuant
to the Plan.
(b) BOARD means the board of directors of BARRA, Inc.
(c) CODE means the Internal Revenue Code of 1986, as amended. Reference
in the Plan to any Section of the Code shall be deemed to include any
amendments or successor provisions to such Section and any regulations
under such Section.
(d) COMMON STOCK means the common stock of BARRA, Inc.
(e) CORPORATION means BARRA, Inc.
(f) CORPORATE CHANGE means one of the following events: (i) the merger,
consolidation or other reorganization of the Corporation in which the
outstanding Common Stock is converted into or exchanged for a
different class of securities of the Corporation, a class of
securities of any other issuer (except a Subsidiary or Parent
Corporation), cash or other property other than (a) a merger,
consolidation or reorganization of the Corporation which would result
in the voting stock of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation,
at least sixty percent (60%) of the combined voting power of the
voting stock of the Corporation or such surviving entity outstanding
immediately after such merger, consolidation or reorganization of the
Corporation, or (b) merger, consolidation or reorganization of the
Corporation effected to implement a recapitalization of the
Corporation (or similar transaction)
<PAGE>
in which no person acquires more than forty-nine percent (49%) of the
combined voting power of the Corporation's then outstanding stock;
(ii) the sale, lease or exchange of all or substantially all of the
assets of the Corporation to any other corporation or entity (except a
Subsidiary or Parent Corporation); (iii) the adoption by the
stockholders of the Corporation of a plan of liquidation and
dissolution; (iv) the acquisition (other than acquisition pursuant to
any other clause of this definition) by any person or entity,
including without limitation a "group" as contemplated by Section
13(d)(3) of the Exchange Act, of beneficial ownership, as contemplated
by such Section, of more than twenty-five percent (25%) (based on
voting power) of the Corporation's outstanding capital stock or
acquisition by a person or entity who currently has beneficial
ownership which increases such person's or entity's beneficial
ownership to fifty percent (50%) or more (based on voting power) of
the Corporation's outstanding capital stock; or (v) as a result of or
in connection with a contested election of directors, the persons who
were directors of the Corporation before such election shall cease to
constitute a majority of the Board. Notwithstanding the provisions of
clause (iv) above, a Corporate Change shall not be considered to have
occurred upon the acquisition (other than acquisition pursuant to any
other clause of the preceding sentence) by any person or entity,
including without limitation a "group" as contemplated by Section
13(d)(3) of the Exchange Act, of beneficial ownership, as contemplated
by such Section, of more than twenty-five percent (25%) (based on
voting power) of the Corporation's outstanding capital stock or the
requisite percentage to increase their ownership to fifty percent
(50%) resulting from a public offering of securities of the
Corporation under the Securities Act of 1933, as amended.
(g) EXCHANGE ACT means the Securities Exchange Act of 1934, as amended.
(h) FAIR MARKET VALUE means, as of any specified date, the average or the
last best reported bid and asked prices of the Common Stock on the
National Association of Securities Dealers Automated Quotation
(NASDAQ) system (or, if the Common Stock is not listed on such
exchange, such other national securities exchange on which the Common
Stock is then listed) on that date, or if no prices are reported on
that date, on the last preceding date on which such prices of the
Common Stock are so reported. If the Common Stock is not then listed
on any national securities exchange but is traded over the counter at
the time determination of its Fair Market Value is required to be made
hereunder, its Fair Market Value shall be deemed to be equal to the
average between the reported high and low sales prices of Common Stock
on the most recent date on which Common Stock was publicly traded. If
the Common Stock is not publicly traded at the time a determination of
its value is required to be made hereunder, the determination of its
Fair Market Value shall be made by the Board in such manner as it
deems appropriate (such determination will be made in good-faith as
required by Section 422(c)(1) of the Code and may be based on the
advice of an independent investment banker or appraiser recognized to
be expert in making such valuations).
(i) HOLDER means an individual who has been granted an Award.
(j) INCENTIVE STOCK OPTION means an Option within the meaning of Section
422 of the Code.
(k) NON-EMPLOYEE DIRECTOR means a member of the Board who is not an
employee of the Corporation, its Parent Corporation or its Subsidiary.
<PAGE>
(l) OPTION means an Award granted under Section 7 of the Plan and includes
both Incentive Stock Options to purchase Common Stock and Options
which do not constitute Incentive Stock Options to purchase Common
Stock.
(m) OPTION AGREEMENT means a written agreement between the Corporation and
an employee or director with respect to an Option.
(n) OPTIONEE means an employee, director or individual who has been
granted an Option.
(o) OUTSIDE DIRECTOR refers to a member of the Board who qualifies as an
"outside director" as such term is used in Section 162(m) of the Code
and defined in any applicable Treasury Regulations promulgated
thereunder, including Treasury Regulation Section 1.162-27(e)(3).
(p) PARENT CORPORATION shall have the meaning set forth in Section 424(e)
of the Code.
(q) PLAN means the BARRA, Inc. Directors Option Plan.
(r) RULE 16b-3 means Rule 16b-3 of the General Rules and Regulations of
the Securities and Exchange Commission under the Exchange Act, as such
rule is currently in effect or as hereafter modified or amended.
(s) SUBSIDIARY means a company (whether a corporation, partnership, joint
venture or other form of entity) in which the Corporation, or a
corporation in which the Corporation owns a majority of the shares of
capital stock, directly or indirectly, owns an equity interest of
fifty percent (50%) or more, except solely with respect to the
issuance of Incentive Stock Options the term "Subsidiary" shall have
the same meaning as the term "subsidiary corporation" as defined in
Section 424(f) of the Code.
SECTION 3
EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall be effective as of April 24, 1997 the date of its adoption
by the Board, provided that the Plan is approved by the stockholders of the
Corporation within twelve (12) months before or thereafter and on or prior to
the date of the first annual meeting of stockholders of the Corporation held
subsequent to the acquisition of an equity security by a Holder hereunder for
which exemption is claimed under Rule 16b-3. Notwithstanding any provision of
the Plan or of any Option Agreement, no Option shall be exercisable prior to
such stockholder approval. No further Awards may be granted under the Plan
after ten (10) years from the date the Plan is adopted by the Board or the date
the Plan is approved by the Corporation's shareholders, whichever is earlier.
Subject to the provisions of Section 9, the Plan shall remain in effect until
all Options granted under the Plan have been exercised or have expired by reason
of lapse of time and all restrictions imposed upon restricted stock awards have
lapsed. Any option exercised before shareholder approval is obtained must be
rescinded if shareholder approval is not obtained within twelve (12) months
before or after the Plan is adopted. Such shares shall not be counted in
determining whether such approval is granted.
<PAGE>
SECTION 4
ADMINISTRATION
(a) The Plan shall be administered by the Committee, which shall be
composed as hereinafter set forth in Section 4(b).
(b) The Committee shall consist solely of not less than two Outside
Directors elected by the Board. The Board may from time to time
increase (and thereafter may decrease) the size of the Committee,
elect or remove members thereto (with or without cause) and fill any
vacancies however created; provided, however, that the minimum number
of members on the Committee must be two.
(c) The Committee shall meet at such times and places and upon such notice
as the Committee's Chair determines. A majority of the Committee
shall constitute a quorum. Any acts by the Committee may be taken at
any meeting at which a quorum is present and shall be by majority vote
of those members entitled to vote.
(d) The Committee shall determine which directors of BARRA shall be
granted Awards under the Plan, the timing of such Awards, the terms
thereof and the number of shares of Common Stock subject to each
Award.
(e) The Committee shall have the sole authority, in its absolute
discretion, to adopt, amend and rescind such rules and regulations as,
in its opinion, may be advisable in the administration of the Plan, to
construe and interpret the Plan, its rules and regulations, and the
instruments evidencing Awards granted under the Plan, and to make all
other determinations deemed necessary or advisable for the
administration of the Plan. All decisions, determinations and
interpretations of the Committee shall be binding on all Optionees.
SECTION 5
GRANT OF OPTIONS SUBJECT TO THE PLAN
(a) AWARD LIMITS.
(i) The Committee shall grant Options which do not constitute
Incentive Stock Options for 5,000 shares of Common Stock to all
current Non-Employee Directors on April 24, 1997, pursuant to
the terms of the Plan. In the event that a new Non-Employee
Director is appointed to the Board or that a current member of
the Board becomes a Non-Employee Director, the Committee shall
grant Options which do not constitute Incentive Stock Options
for 10,000 shares of Common Stock to such Non-Employee Director
on the date such person becomes a Non-Employee Director,
pursuant to the terms of the Plan.
(ii) On each anniversary of the date of the initial Option grant in
Section 5(a)(i) of the Plan, the Committee shall grant Options
which do not constitute Incentive Stock Options for 2,000
shares of Common Stock to all current Non-Employee Directors,
pursuant to the terms of the Plan.
(iii) The Committee shall also have the discretion to grant Options
to all members of the Board, whether or not they are
Non-Employee Directors,
<PAGE>
pursuant to the terms of the Plan. In addition, in and to the
extent that the Code so permits, any Option granted under this
Section 5(iii) of the Plan may be an Incentive Stock Option.
(b) SHARES SUBJECT TO THE PLAN.
The aggregate number of shares of Common Stock that may be issued
under the Plan shall not exceed 100,000 shares. Any of such shares
which remain unissued and which are not subject to outstanding Options
at the termination of the Plan shall cease to be subject to the Plan
but, until termination of the Plan, the Corporation shall at all times
reserve a sufficient number of shares to meet the requirements of the
Plan. Shares shall be deemed to have been issued under the Plan only
to the extent actually issued and delivered pursuant to an Award. To
the extent that an Award lapses or the rights of its Holder terminate,
any shares of Common Stock subject to such Award shall again be
available for the grant of an Award. The aggregate number of shares
which may be issued under the Plan shall be subject to adjustment in
the same manner as provided in Section 8 of the Plan with respect to
shares of Common Stock subject to Options then outstanding. Separate
stock certificates shall be issued by the Corporation for those shares
acquired pursuant to the exercise of an Incentive Stock Option and for
those shares acquired pursuant to the exercise of any Option which
does not constitute an Incentive Stock Option. The maximum number of
Shares of Common Stock with respect to which Options may be granted
during any calendar year to any Optionee shall not exceed [______]
shares.
(c) STOCK OFFERED. The stock to be offered pursuant to the grant of an
Award may be authorized but unissued Common Stock or Common Stock
previously issued and outstanding and reacquired by the Corporation.
SECTION 6
ELIGIBILITY
An Incentive Stock Option Award made pursuant to the Plan may be granted
only to an individual who, at the time of grant, is an director of the
Corporation who is also an employee of the Corporation, a Parent or a
Subsidiary. An Award of an Option which is not an Incentive Stock Option may be
granted only to an individual who, at the time of grant, is a director of the
Corporation. An Award made pursuant to the Plan may be granted on more than one
occasion to the same person, and such Award may include an Incentive Stock
Option, an Option which is not an Incentive Stock Option, or any combination
thereof. Each Award shall be evidenced by a written instrument duly executed by
or on behalf of the Corporation.
SECTION 7
STOCK OPTIONS
(a) STOCK OPTION AGREEMENT. Each Option shall be evidenced by an Option
Agreement between the Corporation and the Optionee which shall contain
such terms and conditions as may be approved by the Committee and
agreed upon by the Holder. The terms and conditions of the respective
option Agreements need not be identical. Under each Option Agreement,
a Holder shall have the right to appoint any individual or legal
entity in writing as his or her beneficiary under the Plan in the
event of his death. Such designation may be revoked in writing by the
Holder at
<PAGE>
any time and a new beneficiary may be appointed in writing on the form
provided by the Committee for such purpose. In the absence of such
appointment, the beneficiary shall be the legal representative of the
Holder's estate.
(b) OPTION PERIOD. The term of each Option shall be as specified by the
Committee at the date of grant and shall be stated in the Option
Agreement; provided, however, that an option may not be exercised more
than one hundred twenty (120) months from the date it is granted.
(c) LIMITATIONS ON EXERCISE OF OPTION. Any Option granted pursuant to
Section 5(a)(i) of the Plan shall be vested and exercisable at the
rate of twenty percent (20%) per year over the five (5) years from the
date it is granted so long as the Optionee is continuously a director
of the Corporation. Any Option granted pursuant to Section 5(a)(ii)
shall be automatically vested and exercisable on the date it is
granted. Any Option granted pursuant to Section 5(a)(iii) of the Plan
shall be vested and exercisable at the discretion of the Committee;
provided, however, that the rate of vesting shall be not longer than
twenty percent (20%) per year over the five (5) years from the date it
is granted.
(d) SPECIAL LIMITATIONS ON INCENTIVE STOCK OPTIONS. To the extent that
the aggregate Fair Market Value (determined at the time the respective
Incentive Stock Option is granted) of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by an
individual during any calendar year under all incentive stock option
plans of the Corporation (and any Parent Corporation or Subsidiary)
exceeds one hundred thousand dollars ($100,000), such excess Incentive
Stock Options shall be treated as Options which do not constitute
Incentive Stock Options. The Committee shall determine, in accordance
with applicable provisions of the Code, Treasury Regulations and other
administrative pronouncements, which of an Optionee's Incentive Stock
Options will not constitute Incentive Stock Options because of such
limitation and shall notify the Optionee of such determination as soon
as practicable after such determination. No Incentive Stock Option
shall be granted to an individual if, at the time the Option is
granted, such individual owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of
the Corporation or of its Parent Corporation or a Subsidiary, within
the meaning of Section 422(b)(6) of the Code, unless (i) at the time
such Option is granted the Option price is at least one hundred ten
percent (110%) of the Fair Market Value of the Common Stock subject to
the Option and (ii) such Option by its terms is not exercisable after
the expiration of five years from the date of grant.
(e) OPTION PRICE. The purchase price of Common Stock issued under each
Option shall be the Fair Market Value of Common Stock subject to the
Option on the date the Option is granted, except that the price shall
be one hundred ten percent (110%) of the Fair Market Value in the case
of any person or entity who owns stock comprising more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Corporation or its Parent Corporation or Subsidiary.
(f) TERMINATION OF SERVICE AS A DIRECTOR. If an Optionee's service as a
director of the Corporation terminates for any reason including death
and disability: (1) the Options which are not vested and not
exercisable shall automatically terminate, unless otherwise determined
at the discretion of the Board; (2) the Options which are vested and
exercisable on the date of such termination may be exercised not later
<PAGE>
than ninety (90) days (or such other period of time as determined by
the Committee) after the termination date.
SECTION 8
RECAPITALIZATION OR REORGANIZATION
(a) Except as hereinafter otherwise provided, the aggregate number of
shares which may be issued pursuant to an Award and the outstanding
Awards shall be subject to an automatic pro rata adjustment by the
Committee as to the number and price of shares of Common Stock in the
event of changes in the outstanding Common Stock by reason of stock
dividends, stock splits, reverse stock splits, reclassifications,
recapitalizations, reorganizations or other relevant changes in
capitalization occurring after the date of the grant of any such
Options.
(b) The existence of the Plan and the Awards granted hereunder shall not
affect in any way the right or power of the Board or the stockholders
of the Corporation to make or authorize any adjustment,
recapitalization, reorganization or other change in the capital
structure of the Corporation, a Parent Corporation or a Subsidiary or
their business, any merger or consolidation of the Corporation, a
Parent Corporation or a Subsidiary, any issue of debt or equity
securities having any priority or preference with respect to or
affecting Common Stock or the rights thereof, the dissolution or
liquidation of the Corporation, a Parent Corporation or a Subsidiary,
or any sale, lease, exchange or other disposition of all or any part
of their assets or business or any other corporate act or proceeding.
(c) The shares with respect to which Options may be granted are shares of
Common Stock as presently constituted but if and whenever, prior to
the expiration of an Option theretofore granted, the Corporation shall
effect a subdivision or consolidation of shares of Common Stock or the
payment of a stock dividend on Common Stock without receipt of
consideration by the Corporation, the number of shares of Common Stock
with respect to which such Option may thereafter be exercised (i) in
the event of an increase in the number of outstanding shares shall be
proportionately increased , and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the
number of outstanding shares shall be proportionately reduced, and the
purchase price per share shall be proportionately increased.
(d) If the Corporation recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise of an Option theretofore
granted, the Optionee shall be entitled to purchase under such Option,
in lieu of the number of shares of Common Stock as to which such
Option shall then be exercisable, the number and class of shares of
stock and securities, and the cash and other property to which the
Optionee would have been entitled pursuant to the terms of the
recapitalization if, immediately prior to such recapitalization, the
Optionee had been the holder of such record of the number of shares of
Common Stock then covered by such Option.
(e) In the event of a Corporate Change, unless such time period is
otherwise deemed to be impractical by the Committee, then no later
than (i) two business days prior to any Corporate Change referenced in
Clause (i), (ii), (iii) or (v) of the definition thereof or (ii) ten
business days after any Corporate Change referenced in Clause (iv) of
the definition thereof, the Committee shall act to accelerate the time
at which Options then outstanding may be exercised so that such
Options may be exercised in
<PAGE>
full for a limited period of time on or before a specified date
(before or after such Corporate Change) fixed by the Committee, after
which specified date all unexercised Options and all rights of
Optionees thereunder shall terminate.
(f) Except as hereinbefore expressly provided, issuance by the Corporation
of shares of stock of any class or securities convertible into shares
of stock of any class, for cash, property, labor or services, upon
direct sale, upon the exercise of rights or warranty to subscribe
therefore, or upon conversion of shares or obligations of the
Corporation convertible into such shares or other securities, and in
any case whether or not for fair value, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number
of shares of Common Stock subject to Options theretofore granted, or
the purchase price per share of Common Stock subject to Options.
SECTION 9
AMENDMENT OR TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan or any Option or alter
or amend the Plan or any part thereof or any Option from time to time; provided
that no change in any Award previously granted may be made which would impair
the rights of the Holder without the consent of the Holder, and provided
further, that the Board may not, without approval of the stockholders, amend the
plan:
(a) to increase the aggregate number of shares which may be issued
pursuant to the provisions of the Plan on exercise or surrender of
Options;
(b) to change the minimum Option exercise price;
(c) to change the class of employees eligible to receive Awards or
increase materially the benefits accruing to employees under the Plan;
(d) to extend the maximum period during which Awards may be granted under
the Plan;
(e) to modify materially the requirements as to eligibility for
participation in the Plan; or
(f) to decrease any authority granted to the Committee hereunder in
contravention of Rule 16b-3.
SECTION 10
OTHER
(a) NO RIGHT TO AN AWARD. Neither the adoption of the Plan nor any action
of the Committee shall be deemed to give an employee or director any
right to be granted an Option to purchase Common Stock or any other
rights hereunder except as may be evidenced by an Option Agreement
duly executed on behalf of the Corporation, and then only to the
extent of and on the terms and conditions expressly set forth therein.
The Plan shall be unfunded. The Corporation shall not be required to
establish any special or separate fund or to make any other
segregation of funds or assets to assure the payment of any Award.
<PAGE>
(b) NO EMPLOYMENT RIGHTS CONFERRED. Nothing contained in the Plan or in
any Award made hereunder shall (i) confer upon any employee or
director any right with respect to employment with the Corporation or
any Parent Corporation or Subsidiary, or (ii) interfere in any way
with the right of the Corporation or any Parent Corporation or
Subsidiary to terminate his or her employment or his or her service as
a member of the Board at any time.
(c) OTHER LAWS; WITHHOLDING. No fractional shares of Common Stock shall be
delivered, nor shall any cash in lieu of fractional shares be paid.
The Corporation shall have the right to deduct in connection with all
Awards any taxes required by law to be withheld and to require any
payments necessary to enable it to satisfy its withholding
obligations. The Committee may permit the Holder of an Award to elect
to surrender, or authorize the Corporation to withhold shares of
Common Stock (valued at their Fair Market Value on the date of
surrender or withholding of such shares) in satisfaction of the
Corporation's withholding obligation, subject to such restrictions as
the Committee deems necessary to satisfy the requirements of Rule
16b-3.
(d) NO RESTRICTION OF CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Corporation or any Parent
Corporation or Subsidiary from taking any corporate action which is
deemed by the Corporation or such Parent Corporation or Subsidiary to
be appropriate or in its best interest, whether or not such action
would have an adverse effect on the Plan or any Award made under the
Plan. No employee, director, beneficiary or other person shall have
any claim against the Corporation or any Parent Corporation or
Subsidiary as a result of such action.
(e) RESTRICTIONS ON TRANSFER. An Award shall not be transferable
otherwise than by will or the laws of descent and distribution and
shall be exercisable during the lifetime of the Holder only by such
Holder or the Holder's guardian or legal representative.
(f) INFORMATION TO EMPLOYEES. Optionees under the Plan shall receive
financial statements annually regarding the corporation during the
period the options are outstanding.
(g) RULE 16b-3. It is intended that the Plan and any grant of an Award
made to a person subject to Section 16 of the Exchange Act meet all of
the requirements of Rule 16b-3. If any provisions of the plan or any
such Award would disqualify the Plan or such Award hereunder, or would
otherwise not comply with Rule 16b-3, such provision or Award shall be
construed or deemed amended to conform to Rule 16b-3.
(h) GOVERNING LAW. The Plan and securities issued hereunder shall by
construed in accordance with the laws of the State of California and
all applicable federal law.
ADOPTED BY THE COMMITTEE AS OF APRIL 24, 1997
APPROVED BY THE SHAREHOLDERS AS OF JULY 31, 1997
<PAGE>
Exhibit 4.4
INCENTIVE STOCK OPTION AGREEMENT
PURSUANT TO THE
BARRA, INC. DIRECTORS PLAN
This INCENTIVE STOCK OPTION AGREEMENT (this "Agreement") is made as of the
__ day of _____, 1997, by and between BARRA, Inc., a California corporation (the
"Corporation"), and ____________________ ("Employee").
W I T N E S S E T H:
The Corporation has determined that it is in the best interests of the
Corporation and its shareholders to encourage ownership in the Corporation by
qualified employee-directors of the Corporation, thereby providing additional
incentives to attract and maintain qualified employee-directors. To that end,
an incentive stock option is granted by the Committee to Employee pursuant, and
subject to, the BARRA, Inc. Directors Plan (the "Plan") on the following terms
and conditions:
SECTION I.
DEFINED TERMS
Unless otherwise defined herein or, unless the context requires a different
definition, capitalized terms used herein shall have the meanings assigned to
them in the Plan.
SECTION II.
SHARES OPTIONED, OPTION PRICE AND TIME OF EXERCISE
Effective as of ______________, 199__, the Corporation grants to Employee,
subject to the terms and provisions set forth hereinafter and in the Plan, the
right and option to purchase all or any part of the number of shares set forth
in Exhibit A of the presently authorized but unissued common stock ("Common
Stock") of the Corporation at the purchase price per share set forth as the
Option Price in Exhibit A (the option hereby granted being hereinafter referred
to as the "Option").
The Option shall not be considered granted (as of the effective date
described above) or become exercisable unless and until Employee delivers to the
Corporation a fully executed counterpart hereof. Thereafter, the Option shall
be exercisable in accordance with the Exercise Schedule set forth on Exhibit A,
subject to any termination, acceleration or change in such Exercise Schedule set
forth in this Agreement apart from Exhibit A.
Neither the Option nor any other rights granted under this Agreement may be
exercised after the Expiration Date set forth on Exhibit A and, before that
time, the Option may be terminated as hereinafter provided. If Employee does
not purchase the full number of shares to
<PAGE>
which he or she is entitled in any one year, he or she may purchase such shares
in the next year specified in the Exercise Schedule hereto, in addition to the
shares which he or she is otherwise entitled to purchase in the next year.
SECTION III.
EXERCISE PROCEDURE
Employee shall exercise the Option by notifying the Corporation of the
number of shares that he or she desires to purchase and by delivering with such
notice the full payment for the purchase price of the shares being purchased.
Payment for the shares purchased upon exercise of an Option may be made (a) in
cash or by check; (b) by surrender of shares of Common Stock of the Corporation
that have been owned and paid for by the Optionee for more than six (6) months
or were obtained by the Optionee in the open public market, having a fair market
value equal to the exercise price of the Option; (c) by waiver of compensation
due or accrued to the Optionee for services rendered; or (d) through a "margin"
commitment from the Optionee and a dealer of the National Association of
Securities Dealers; or (e) by any combination of the foregoing. For purposes of
determining the amount, if any, of the purchase price satisfied by payment in
Common Stock, such Common Stock shall be valued at its Fair Market Value on the
date of exercise as defined in the Plan. In no event shall the purchase price
be less than one hundred percent (100%) of the Fair Market Value of such stock
at the time the Option is granted; except that the purchase price shall be one
hundred ten percent (110%) of the fair value in the case of any person who owns
stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Corporation. Any Common Stock delivered in
satisfaction of all or a portion of the purchase price shall be appropriately
endorsed for transfer and assignment to the Corporation.
SECTION IV
NON-ASSIGNABILITY AND TERM OF OPTION
The Option shall not be transferable or assignable by the Employee,
otherwise than by will or the laws of descent and distribution and the Option
shall be exercisable, during the Employee's lifetime, only by him or, during
periods of legal disability, by his legal representative. No Option shall be
subject to execution, attachment or similar process.
In no event may the Option be exercisable to any extent by anyone after the
Expiration Date specified in Exhibit A. It is expressly agreed that, anything
contained herein to the contrary notwithstanding, this Agreement shall not
constitute, or be evidence of, any agreement or understanding, express or
implied, that the Corporation, a Parent Corporation or a Subsidiary will employ
Employee for any period of time or in any position or for any particular
compensation.
<PAGE>
SECTION V.
RIGHTS OF EMPLOYEE IN STOCK
Neither Employee, nor his successor in interest, shall have any of the
rights of a shareholder of the Corporation with respect to the shares for which
the Option is exercised until such shares are issued by the Corporation.
SECTION VI.
NOTICES
Any notice to be given hereunder shall be in writing and shall be addressed
to the Corporation, in care of the Chief Financial Officer, at BARRA, Inc., at
2100 Milvia Street, Berkeley, California 94704-1113, and any notice to be given
to Employee shall be addressed to the address designated below the signature
appearing hereinafter, or at such other address as either party may hereafter
designate in writing to the other. Any such notice shall have been deemed duly
given upon three (3) days of sending such notice enclosed in a properly sealed
envelope, addressed as aforesaid, registered or certified and deposited (with
the proper postage and registration or certificate fee prepaid) in the United
States mail.
SECTION VII.
SUCCESSORS OR ASSIGNS OF THE CORPORATION
The Option shall be binding upon and shall inure to the benefit of any
successor of the Corporation.
SECTION VIII.
MISCELLANEOUS
(a) DESIGNATION OF BENEFICIARY. The Employee shall have the right to
appoint any individual or legal entity in writing, on Exhibit B hereto, as his
or her beneficiary to receive any Option (to the extent not previously
terminated or forfeited) under this Agreement upon the Employee's death. Such
designation under this Agreement may be revoked by the Employee at any time and
a new beneficiary may be appointed by the Employee by execution and submission
to the Board of a revised Exhibit B to this Agreement. In order to be
effective, a designation of beneficiary must be completed by the Employee on
Exhibit B and received to the Board, or its designee, prior to the date of the
Employee's death. In the absence of such designation, the Employee's
beneficiary shall be the legal representative of the Employee's estate.
(b) INCAPACITY OF EMPLOYEE OR BENEFICIARY. If any person entitled to a
distribution under this Agreement is deemed by the Board to be incapable of
making an election hereunder or of personally receiving and giving a valid
receipt for such distribution hereunder, then, unless and until an election or
claim therefore shall have been made by a duly appointed guardian or other legal
representative of such person, the Board may provide for such election or
distribution or any part thereof to be made to any other person or institution
then contributing toward or providing for the care and maintenance of such
person. Any such distribution shall be a
<PAGE>
distribution for the account of such person and a complete discharge of any
liability of the Board, the Corporation and the Plan therefore.
(c) INCORPORATION OF THE PLAN. The terms and provisions of the Plan are
hereby incorporated in this Agreement. Unless otherwise specifically stated
herein, the terms and provisions of the Plan shall control in the event of any
inconsistency between the Plan and this Agreement.
(d) GOVERNING LAW. THIS AGREEMENT AND SECURITIES ISSUED HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND ALL APPLICABLE FEDERAL
LAWS.
(e) GENDER. Reference to the masculine herein shall be deemed to include
the feminine, wherever appropriate.
(f) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which shall together constitute a valid and binding agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the Corporation and
the Employee as of the date and year first written above.
Employee BARRA, Inc.
----------------------------
Address: By:
---------------------------- -------------------------------------
Title:
---------------------------- ----------------------------------
<PAGE>
EXHIBIT A
INCENTIVE STOCK OPTION AGREEMENT
PURSUANT TO THE
BARRA, INC. DIRECTORS PLAN
1. Date of Grant: __________, 1997 (Date of Offering)
2. Employee: ____________________________________
3. Number of Shares: _______________________ (_____) shares
of Common Stock
4. Option Price per Share: $____________ (not less than Fair Market
Value)
5. Exercise Schedule: _______________________________________
6. Expiration Date: ___________________ (not more than ten
(10) years from Date of Grant; (5) years
from Date of Grant for 10 percent or
more shareholders).
To qualify for Incentive Stock Option tax treatment, the Employee must not
dispose of shares obtained on exercise of an Option until at least two years
after the date of grant and one year after the date of exercise of the Option.
If these holding periods are not met, the sale or other disposition of shares
will be a disqualifying disposition pursuant to Code Section 422(c).
<PAGE>
EXHIBIT B
DESIGNATION OF BENEFICIARY FOR THE
INCENTIVE STOCK OPTION AGREEMENT
PURSUANT TO THE BARRA, INC. DIRECTORS PLAN
Name of Employee:
---------------------------------
Original Date of Agreement:
-----------------------
If I shall cease to be an Employee of the Corporation, a Parent Corporation or a
Subsidiary by reason of my death, or if I shall die after I have terminated my
employment with the Corporation, the Parent Corporation or a Subsidiary, but,
prior to the expiration of the Option (as provided in the Agreement), then all
rights to the Option granted under this Agreement that I hereby hold upon my
death, to the extent not previously terminated or forfeited, shall be
transferred to __________________ (insert name of beneficiary) in the manner
provided for in the Plan and the Agreement.
- ---------------------------------
- ---------------------------------
Date
Receipt acknowledged on behalf of BARRA, Inc. by:
- ---------------------------------
- ---------------------------------
Date
<PAGE>
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE BARRA, INC. DIRECTORS PLAN
This NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is made as of
the _____ day of _______________, 1997, by BARRA, Inc., a California corporation
(the "Corporation"), and ______________________ ("Holder").
W I T N E S S E T H:
The Corporation has determined that it is in the best interests of the
Corporation and its shareholders to encourage ownership in the Corporation by
members of the Board of Directors of the Corporation, thereby providing
additional incentives to attract and retain qualified directors. To that end, a
non-qualified stock option is granted by the Committee to Holder pursuant, and
subject to, the BARRA, Inc. Directors Plan (the "Plan") on the following terms
and conditions:
SECTION I.
DEFINED TERMS
Unless otherwise defined herein or, unless the context requires a different
definition, capitalized terms used herein shall have the meanings assigned to
them in the Plan.
SECTION II.
OPTIONED, OPTION PRICE AND TIME OF EXERCISE
Effective as of ___________, 199__, the Corporation grants to Holder,
subject to the terms and provisions set forth hereinafter and in the Plan, the
right and option to purchase all or any part of the number of shares set forth
in Exhibit A of the presently authorized but unissued common stock ("Common
Stock"), of the Corporation at the purchase price per share set forth as the
Option Price in Exhibit A (the option hereby granted being hereinafter referred
to as the "Option").
The Option shall not be considered granted (as of the effective date
described above) or become exercisable unless and until Holder delivers to the
Corporation a fully executed counterpart hereof. Thereafter, the Option shall
be exercisable in accordance with the Exercise Schedule set forth on Exhibit A,
subject to any termination, acceleration or change in such Exercise Schedule set
forth in this Agreement apart from Exhibit A.
Neither the Option nor any other rights granted under this Agreement may be
exercised after the Expiration Date set forth on Exhibit A and, before that
time, the Option may be terminated as hereinafter provided. If Holder does not
purchase the full number of shares to which he or she is entitled in any one
year, he or she may purchase such shares in the next year specified in the
Exercise Schedule hereto, in addition to the shares which he or she is otherwise
entitled to purchase in the next year.
<PAGE>
SECTION III.
EXERCISE PROCEDURE WITHHOLDING
Holder shall exercise the Option by notifying the Corporation of the number
of shares that he or she desires to purchase and by delivering with such notice
the full payment for the purchase price of the shares being purchased. Payment
for the shares purchased upon exercise of an Option may be made (a) in cash or
by check; (b) by surrender of shares of Common Stock of the Corporation that
have been owned and paid for by the Optionee for more than six (6) months or
were obtained by the Optionee in the open public market, having a fair market
value equal to the exercise price of the Option; (c) by waiver of compensation
due or accrued to the Option for services rendered; (d) through a "same day
sale" commitment from the Optionee and a dealer of the National Association of
Securities Dealers ("NASD"); (e) through a "margin" commitment from the Optionee
and an NASD dealer; or (f) by any combination of the foregoing. For purposes of
determining the amount, if any, of the purchase price satisfied by payment in
Common Stock, such Common Stock shall be valued at its Fair Market Value on the
date of exercise, as defined in the Plan. In no event, shall the purchase price
be less than the Fair Market Value of such stock at the time the Option is
granted; except that the purchase price shall be one hundred ten percent (110%)
of the fair value in the case of any person who owns stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Corporation. Any Common Stock delivered in satisfaction of all or a portion
of the purchase price shall be appropriately endorsed for transfer and
assignment to the Corporation.
The Corporation will, as soon as is reasonably possible, notify the Holder
of the amount of withholding tax, if any, that must be paid under federal, state
and local law due to exercise of the Option. The Corporation shall have no
obligation to deliver certificates for the shares purchased until Holder pays to
the Corporation the amount of withholding specified in the Corporation's notice
in cash or in Common Stock. Alternatively, Holder may direct the Corporation to
withhold that number of shares of Common Stock (valued according to the
procedures set forth in this section on the date of withholding) sufficient to
satisfy such obligation, subject to such restrictions or procedures as the Board
deems necessary to satisfy Rule 16b-3.
SECTION IV.
NON-ASSIGNABILITY AND TERM OF OPTION
The Option shall not be transferrable or assignable by the Holder,
otherwise than by will or the laws of descent and distribution and the Option
shall be exercisable, during the Holder's lifetime, only by him or, during
periods of legal disability, by his legal representative. No Option shall be
subject to execution, attachment, or similar process.
In no event may the Option be exercisable to any extent by anyone after the
Expiration Date specified in Exhibit A. It is expressly agreed that, anything
contained herein to the contrary notwithstanding, this Agreement shall not
constitute, or be evidence of, any agreement or understanding, express or
implied, that the Corporation, a Parent Corporation or a Subsidiary will employ
Holder for any period of time or in any position or for any particular
compensation.
<PAGE>
SECTION V.
RIGHTS OF HOLDER IN STOCK
Neither Holder, nor his successor in interest, shall have any of the rights
of a shareholder of the Corporation with respect to the shares for which the
Option is issued until such shares are exercised by the Corporation.
SECTION VI.
NOTICES
Any notice to be given hereunder shall be in writing and shall be addressed
to the Corporation, in care of the Chief Financial Officer, at BARRA, Inc., 2100
Milvia Street, Berkeley, California 94704-1113, and any notice to be given to
the Holder shall be addressed to the address designated below the signature
appearing hereinafter, or at such other address as either party may hereafter
designate in writing to the other. Any such notice shall have been deemed duly
given upon three (3) days of sending such notice enclosed in a properly sealed
envelope, addressed as aforesaid, registered or certified and deposited (with
the proper postage and registration or certificate fee prepaid) in the United
States mail.
SECTION VII.
SUCCESSORS OR ASSIGNS OF THE CORPORATION
The Option shall be binding upon and shall inure to the benefit of any
successor of the Corporation.
SECTION VIII.
MISCELLANEOUS
a) DESIGNATION OF BENEFICIARY. The Holder shall have the right to
appoint any individual or legal entity in writing, on Exhibit B hereto, as his
or her beneficiary to receive any Option (to the extent not previously
terminated or forfeited) under this Agreement upon the Holder's death. Such
designation under this Agreement may be revoked by the Holder at any time and a
new beneficiary may be appointed by the Holder by execution and submission to
the Board of a revised Exhibit B to this Agreement. In order to be effective,
a designation of beneficiary must be completed by the Holder on Exhibit B and
received to the Board, or its designee, prior to the date of the Holder's death.
In the absence of such designation, the Holder's beneficiary shall be the legal
representative of the Holder's estate.
b) INCAPACITY OF HOLDER OR BENEFICIARY. If any person entitled to a
distribution under this Agreement is deemed by the Board to be incapable of
making an election hereunder or of personally receiving and giving a valid
receipt for such distribution hereunder, then, unless and until an election or
claim therefore shall have been made by a duly appointed guardian or other legal
representative of such person, the Board may provide for such election or
distribution or any part thereof to be made to any other person or institution
then contributing toward or providing for the care and maintenance of such
person. Any such distribution shall be a distribution for the account of such
person and a complete discharge of any liability of the Board, the Corporation
and
<PAGE>
the Plan therefore.
(c) INCORPORATION OF THE PLAN. The terms and provisions of the Plan are
hereby incorporated in this Agreement. Unless otherwise specifically stated
herein, the terms and provisions of the Plan shall control in the event of any
inconsistency between the Plan and this Agreement.
(d) GOVERNING LAW. THIS AGREEMENT AND SECURITIES ISSUED HEREUNDER SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND ALL APPLICABLE FEDERAL
LAWS.
a) GENDER. Reference to the masculine herein shall be deemed to include
the feminine, wherever appropriate.
b) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which shall together constitute a valid and binding agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the Corporation and
the Holder as of the date and year first written above.
Holder: BARRA, INC.
-----------------------------
Address: By:
---------------------------- ------------------------
- ------------------------------------
Title:
----------------------
<PAGE>
EXHIBIT A
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
BARRA, INC. DIRECTORS PLAN
1. Date of Grant: _______________, 199__ (Date of Offering)
2. Holder: __________________________________________
3. Number of Shares: _______________ (_____) shares of Common
Stock
4. Option Price Per Share $_________________________________________
5. Exercise Schedule: [Twenty percent (20%) of the Options
subject to this Agreement shall be
exercisable on each anniversary date of
the Date of Grant specified above until
the Options are fully exercisable.] [One
Hundred Percent (100%) on Date of Grant]
6. Expiration Date: ____________________(not more than ten
(10) years from Date of Grant.)
<PAGE>
EXHIBIT B
DESIGNATION OF BENEFICIARY FOR THE
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
BARRA, INC. DIRECTORS PLAN
Name of Holder:
------------------------------
Original Date of Agreement:
-------------------
If I shall cease to be employed or engaged by the Corporation, a Parent
Corporation or a Subsidiary by reason of my death, or if I shall die after I
have terminated my employment or engagement with the Corporation, the Parent
Corporation or a Subsidiary, but, prior to the expiration of the Option (as
provided in the Agreement), then all rights to the Option granted under this
Agreement that I hereby hold upon my death, to the extent not previously
terminated or forfeited, shall be transferred to __________________ (insert name
of beneficiary) in the manner provided for in the Plan and the Agreement.
- ---------------------------------
- ---------------------------------
Date
Receipt acknowledged on behalf of BARRA, Inc. by:
- ---------------------------------
- ---------------------------------
Date
<PAGE>
Exhibit 5.1
September 11, 1997
BARRA, Inc.
2100 Milvia Street
Berkeley, CA 94704-1113
Ladies and Gentlemen:
You have requested our opinion as special counsel for BARRA, Inc., a
California corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, of an aggregate of 100,000 shares (the "Shares") of
the Company's Common Stock, no par value reserved for issuance under the
BARRA, Inc. Directors Option Plan (the "Plan"), pursuant to a Registration
Statement on Form S-8 (the "Registration Statement").
For purposes of this opinion, we have examined the Registration Statement as
filed with the Securities and Exchange Commission on the date hereof, and the
exhibits thereto. We have also been furnished with and have examined originals
or copies, certified or otherwise identified to our satisfaction, of all records
of the Company, agreements and other instruments, certificates of officers and
representatives of the Company, certificates of public officials and other
documents as we have deemed necessary to review as a basis for the opinion
hereafter expressed. As to questions of fact material to such opinion, we have,
where relevant facts were not independently established, relied upon such
further legal and factual examination and investigation as we deem necessary for
purposes of rendering the following opinion.
In our examination we have assumed without independent investigation with
respect to the accuracy thereof, the genuineness of all signatures, the legal
capacity of natural persons, the correctness of facts set forth in certificates,
the authenticity, accuracy and completeness of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such copies. We
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BARRA, Inc.
September 11, 1997
Page 2
have also assumed that such documents have each been duly authorized, properly
executed and delivered by each of the parties thereto other than the Company.
We have also assumed that the Shares, when issued, will be issued in compliance
with the Securities Act of 1933, as amended, and with the Company's Amended and
Restated Articles of Incorporation and in accordance with the terms of and in
exchange for consideration in the amount of the option price for the Shares as
specified in the Plan.
We are members of the bar of the State of California. Our opinions below are
limited to the laws of the State of California and the federal securities laws
of the United States.
Based on the foregoing, and subject to the assumptions and qualifications set
forth herein, it is our opinion that all of the Shares, when issued, will be
legally and validly issued, fully paid and nonassessable.
We consent to the filing and use of this opinion as an exhibit to the
Registration Statement and consent to the use of our name under the caption
"Legal Matters" in the prospectus to be distributed in connection with the
issuance of the Shares and the grant of options under the Plan.
Sincerely yours,
/s/ Graham & James LLP
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GRAHAM & JAMES LLP
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of BARRA, Inc. on Form S-8 of our report dated May 9, 1997, appearing in the
Annual Report on Form 10-K of BARRA, Inc. for the year ended March 31, 1997.
/s/ Deloitte & Touch LLP
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Deloitte & Touche LLP
September 10, 1997
