<PAGE> 1
As Filed With the Securities and Exchange Commission on June 20, 1996
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
PLATINUM SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0277592
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
195 Technology Drive, Irvine, California 92718
(Address of Principal Executive Offices) (Zip Code)
__________
1996 NONQUALIFIED STOCK OPTION PLAN
(Full title of the plans)
__________
L. George Klaus, Chief Executive Officer
Platinum Software Corporation
195 Technology Drive
Irvine, California 92718
(Name and address of agent for service)
(714) 453-4000
(Telephone number, including area code, of agent for service)
Copies to:
Perry Tarnofsky, Esq.
Platinum Software Corporation
195 Technology Drive
Irvine, CA 92718
Approximate date of commencement of proposed sale to public: As soon
as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered(1) per share price registration fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000
$.001 par value shares (2) $3,119,562.50(2) $1,075.63
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers an aggregate of 500,000 shares of
Common Stock which may be issued pursuant to Registrant's 1996
Nonqualified Stock Option Plan (the "Plan"); together with such
additional shares of such Common Stock as may be issued to the holders
of such options pursuant to anti-dilution provisions.
(2) In accordance with Rule 457(h), the aggregate offering price of
304,600 shares of Common Stock registered hereby which would be issued
upon exercise of options granted under the Plan is based upon the per
share exercise price of such options, the weighted average of which is
$5.00 per share. With respect to the remaining 195,400 shares of
Common Stock registered hereby which would be issued upon exercise of
the remaining options which Registrant is authorized to issue under
its Plan, the aggregate offering price is estimated solely for
purposes of calculating the registration fee, in accordance with Rule
457(h) on the basis of the price of securities of the same class, as
determined in accordance with Rule 457(c), using the average of the
high and low price reported by NASDAQ National Market System for the
Common Stock on June 19, 1996, which was $8.1875 per share.
- -------------------------------------------------------------------------------
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in the
registration statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1995.
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1995, December 31, 1995 and March 31, 1996.
(c) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the annual report
referred to in (a) above.
(d) The description of the Registrant's Common Stock which is
contained in the Registrant's registration statement on Form 8-A filed on
October 15, 1992 pursuant to Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to the registration statement which indicates that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date
of the filing of such documents. For the purposes of this registration
statement, any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such 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.
The validity of the shares of Common Stock offered hereby will be
passed upon for the Registrant by Stradling, Yocca, Carlson & Rauth, a
Professional Corporation, Newport Beach, California.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the
Second Restated Certificate of Incorporation eliminates the liability of
directors to the Registrant or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
(b) The Amended and Restated Certificate of Incorporation provides
that the Registrant will indemnify each person who was or is made a party to
any proceeding by reason of the fact that
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<PAGE> 4
such person is or was a director or officer of the Registrant against all
expense, liability and loss reasonably incurred or suffered by such person in
connection therewith to the fullest extent authorized by the Delaware General
Corporation Law. The Registrant's Amended and Restated Bylaws provide for a
similar indemnity to directors and officers of the Company to the fullest
extent authorized by the Delaware General Corporation Law.
(c) The Registrant has entered into indemnification agreements
with each of its directors and executive officers. The indemnification
agreements provide for the indemnification of directors and executive officers
of the Registrant against any and all expenses, judgments, fines, penalties and
amounts paid in settlement, to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Platinum Software Corporation 1996 Nonqualified Stock Option
Plan (the "Plan").
4.2 Form of Nonqualified Stock Option Agreement pertaining to the
Plan.
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, A Professional
Corporation.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants
23.3 Consent of Ernst & Young LLP, Independent Accountants
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-4 through II-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:
(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;
(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;
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<PAGE> 5
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
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 the 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 initial bona
fide offering thereof.
(3) 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.
(b) 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 (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.
(c) 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.
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<PAGE> 6
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 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 Irvine, State of California, on the 19th day of
June, 1996.
PLATINUM SOFTWARE CORPORATION
By: /s/ L. GEORGE KLAUS
------------------------
L. George Klaus
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Platinum Software
Corporation, do hereby constitute and appoint L. George Klaus and Michael J.
Simmons, or either of them, our true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, and to file the same, with 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 are necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that each of said attorney-in-fact and agents, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ L. GEORGE KLAUS Chief Executive Officer, June 19, 1996
- ------------------------- President, Director
L. George Klaus
/s/ MICHAEL J. SIMMONS Chief Financial Officer June 19, 1996
- ------------------------- (Principal Financial Officer)
Michael J. Simmons
/s/ PAUL G. MAZZARELLA Controller (Principal June 19, 1996
- ------------------------- Accounting Officer)
Paul G. Mazzarella
</TABLE>
(Signatures continued next page.)
II-4
<PAGE> 7
(POWER OF ATTORNEY SIGNATURES CONTINUED THIS PAGE)
<TABLE>
<S> <C> <C>
/s/ CARMELO J. SANTORO Chairman of the Board June 19, 1996
- -------------------------
Carmelo J. Santoro
/s/ W. DOUGLAS HAJJAR Director June 19, 1996
- -------------------------
W. Douglas Hajjar
/s/ RICHARD J. GOEGLEIN Director June 19, 1996
- -------------------------
Richard J. Goeglein
/s/ CHARLES V. PROTHRO Director June 19, 1996
- -------------------------
Charles V. Prothro
/s/ WALDO J. RICHARDS Director June 19, 1996
- -------------------------
Waldo J. Richards
/s/ L. JOHN DOERR Director June 19, 1996
- -------------------------
L. John Doerr
/s/ ARTHUR J. MARKS Director June 19, 1996
- -------------------------
Arthur J. Marks
/s/ ROBERT FINZI Director June 19, 1996
- -------------------------
Robert Finzi
/s/ DONALD R. DIXON Director June 19, 1996
- -------------------------
Donald R. Dixon
/s/ W. DOUGLAS HAJJAR Director June 19, 1996
- -------------------------
W. Douglas Hajjar
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
------ ----------- -----------
<S> <C>
4.1 Platinum Software Corporation 1996 Nonqualified Stock Option Plan (the
"Plan").
4.2 Form of Nonqualified Stock Option Agreement pertaining to the Plan.
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, A Professional Corporation.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional Corporation
(Included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants
23.3 Consent of Ernst & Young LLP, Independent Accountants
24.1 Power of Attorney (Included on the signature page to the Registration
Statement - see pages II-4 and II-5.)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 4.1
PLATINUM SOFTWARE CORPORATION
NONQUALIFIED STOCK OPTION PLAN - 1996
JANUARY 4, 1996
<PAGE> 2
PLATINUM SOFTWARE CORPORATION
NONQUALIFIED STOCK OPTION PLAN - 1996
1. Purposes of the Plan.
The purposes of this Nonqualified Stock Option Plan - 1996
(the "Plan") of Platinum Software Corporation, a Delaware corporation (the
"Company"), are (a) to insure the retention of the services of existing
executive personnel and key employees or its affiliates; (b) to attract and
retain competent new executive personnel and key employees; (c) to provide
incentive to all such personnel and employees to devote their utmost effort and
skill to the advancement and betterment of the Company, by permitting them to
participate in the ownership of the Company and thereby in the success and
increased value of the Company; and (d) to allow consultants, business
associates and others with important business relationships with the Company
the opportunity to participate in the ownership of the Company and thereby have
an interest in the success and increased value of the Company.
2. Shares Subject to the Plan.
The shares of stock subject to nonqualified options having the
terms and conditions set forth in Section 6 below (hereinafter "nonqualified
options") and other provisions of the Plan shall be shares of the Company's
authorized but unused or reacquired common stock (herein sometimes referred to
as the "Common Stock"). The total number of shares of the Common Stock of the
Company which may be issued under the Plan shall not exceed, in the aggregate,
five hundred thousand (500,000) shares. The limitations established by the
preceding sentence shall be subject to adjustment as provided in Section 7
below. In the event that any outstanding nonqualified option granted under the
Plan can no longer under any circumstances be exercised, or in the event that
any shares purchased pursuant to the Plan are reacquired by the Company, for
any reason, the shares of Common Stock allocable to the unexercised portion of
such nonqualified option, or the shares reacquired, as the case may be, may
again be subject to grant or issuance under the Plan.
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3. Eligibility.
Non-executive officers and other key employees of the Company
or of any subsidiary corporation, whether or not he or she is employed by the
Company, or consultants, business associates or others with important business
relationships with the Company, will be eligible to receive nonqualified
options under the Plan. An individual who has been granted a nonqualified
option may, if otherwise eligible, be granted an additional nonqualified option
or options if the Board or Committee shall so determine.
4. Administration of the Plan.
(a) This Plan shall be administered by the Board of
Directors of the Company (the "Board") or by a committee (the "Committee")
consisting of two (2) or more members of the Board. Members of the Committee
may be appointed from time to time by and serve at the pleasure of the Board.
No person serving as a member of the Board or the Committee shall act on any
matter relating solely to such person's own interests under the Plan or any
option thereunder. For purposes of the Plan, the term "Administrator" shall
mean the Board, or if the Board delegates responsibility for any matter to the
Committee, the Committee. The Administrator may from time to time, in its
discretion, determine which persons shall be granted nonqualified options under
the Plan, the terms thereof, and the number of shares for which nonqualified
options shall be granted.
(b) The Administrator shall have full and final authority
to determine the persons to whom, and the time or times at which, nonqualified
options shall be granted, the number of shares to be represented by each
nonqualified option and the consideration to be received by the Company upon
the exercise thereof; to interpret the Plan; to amend and rescind rules and
regulations relating to the Plan; to determine the form and content of the
nonqualified options to be issued under the Plan; to amend and modify the terms
of nonqualified options issued under the Plan, including amending and modifying
the exercisability provisions; to determine the identity or capacity of any
persons who may be entitled to exercise a participant's rights under any
nonqualified option under the Plan; to correct any defect or supply any
omission or reconcile any
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<PAGE> 4
inconsistency in the Plan or in any nonqualified option agreement in the manner
and to the extent the Board or Committee deems desirable to carry the Plan or
nonqualified option into effect; to accelerate the exercise date of any
nonqualified option; to provide for an option to the Company to repurchase any
shares issued upon exercise of an option upon termination of employment; and to
make all other determinations necessary or advisable for the administration of
the Plan, but only to the extent not contrary to the express provisions of the
Plan. Any action, decision, interpretation or determination by the
Administrator with respect to the application or administration of the Plan
shall be final and binding on all participants and prospective participants.
5. Option Exercise Price.
(a) Nonqualified Options. The exercise price of the
shares of Common Stock covered by each nonqualified option granted under the
Plan shall not be less than the fair market value of such shares on the date
the nonqualified option is granted.
(b) Fair Market Value. For purposes of this Section 5,
fair market value shall, if the Common Stock is not listed or admitted to
trading on a stock exchange, be the average of the closing bid price and asked
price of the Common Stock in the over-the-counter market on the date the
nonqualified option is granted, or, if the Common Stock is then listed or
admitted to trading on any stock exchange or the Nasdaq National Market in the
over-the-counter market, the closing sale price on such day on the principal
stock exchange on which the Common Stock is then listed or admitted to trading,
or, if no sale takes place on such day on such national market system or
principal exchange, then the closing sale price of the Common Stock on such
national market system or exchange on the next preceding day on which a sale
occurred. During such times as there is not a market price available, the fair
market value of the Company's Common Stock shall be determined by the
Administrator, which shall consider, among other facts which it considers to be
relevant, the book value of such stock and the earnings of the Company. The
exercise price or the purchase price, as the case may be, shall be subject to
adjustment as provided in Section 7 below.
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<PAGE> 5
6. Terms and Conditions of Nonqualified Options.
(a) Terms and Conditions Applicable to Nonqualified
Options. Each nonqualified option granted pursuant to this Plan shall be
evidenced by a written Nonqualified Option Agreement which shall specify that
the options subject thereto are nonqualified options. The granting of a
nonqualified option shall take place only when this written Nonqualified Option
Agreement shall have been duly executed and delivered by or on behalf of the
Company to the optionee to whom such nonqualified option shall be granted.
Neither anything contained in the Plan nor in any resolution adopted or to be
adopted by the Administrator shall constitute the granting of any nonqualified
option. The Nonqualified Option Agreement shall be in such form as the
Administrator shall, from time to time, recommend, but shall comply with and be
subject to the following terms and conditions:
(i) Medium and Time of Payment. The nonqualified
option price shall be payable (i) in United States dollars payable in cash,
certified check, or bank draft; (ii) subject to any legal restrictions on the
acquisition or purchase of its shares by the Company, by the delivery of shares
of Common Stock that have been held by optionee for at least six (6) months,
which shall be deemed to have a value to the Company equal to the aggregate
fair market value of such shares determined at the date of such exercise in
accordance with the provisions of Section 5 above; (iii) by the issuance of a
promissory note in a form acceptable to the Administrator; (iv) by cancellation
of indebtedness of the Company to optionee, (v) by waiver of compensation due
or accrued to optionee for services rendered, (vi) provided that a public
market for the Company's stock exists, through a "same day sale" commitment
from the optionee and a broker-dealer that is a member of the National
Association of Securities Dealers (an "NASD" Dealer) whereby the optionee
irrevocably elects to exercise his Option and to sell a portion of the Shares
so purchased to pay for the exercise price and whereby the NASD Dealer
irrevocably commits upon receipt of such Shares to forward the exercise price
directly to the Company, (vii) provided that a public market for the Company's
stock exists, through a "margin" commitment from the optionee and a NASD Dealer
whereby the optionee irrevocably elects to exercise this Option and to pledge
the
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<PAGE> 6
Shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the exercise price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
exercise price directly to the Company, or (viii) any combination of (i), (ii),
(iii), (iv), (v), (vi), or (vii) above.
(ii) Number of Shares. The nonqualified option
shall state the total number of shares to which it pertains.
(iii) Term of Nonqualified Option. Each
nonqualified option granted under the Plan shall expire within a period of not
more than ten (10) years from the date the nonqualified option is granted.
(iv) Date of Exercise. The Administrator may, in
its discretion, provide that a nonqualified option may be exercised immediately
or that it may not be exercised in whole or in part for any specified period or
periods of time or subject to the completion of specified projects or
fulfillment of specified duties or responsibilities or the fulfillment of
specified financial or other objectives. Except as may be so provided, any
nonqualified option may be exercised in whole at any time or in part from time
to time during its term.
(v) Termination of Employment. In the event that
an optionee who is an employee of the Company shall cease to be employed by the
Company or any of its subsidiaries for any reason including without limitation
as a result of his or her death or disability, (i) all nonqualified options
granted to any such optionee pursuant to this Plan which are not exercisable at
the date of such cessation shall terminate immediately and become void and of
no effect, and (ii) all nonqualified options granted to any such optionee
pursuant to this Plan which are exercisable at the date of such cessation may
be exercised as determined by the Administrator, but in any event no later than
the date of expiration of the nonqualified option period, and if not so
exercised within such time shall become void and of no effect at the end of
such time. Notwithstanding the above, the Administrator shall maintain, in its
reasonable discretion, the ability to consider the status of an individual
performing consulting services for the Company or
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<PAGE> 7
making himself available to perform consulting services for the Company in
determining whether an individual is employed by the Company.
(b) Other Terms and Conditions.
(i) Rights as a Shareholder. A nonqualified
optionee shall have no rights as a shareholder with respect to any shares of
Common Stock covered by his or her nonqualified option until the date of the
issuance of a share certificate to such optionee for such shares. No
adjustment shall be made for dividends or distributions or other rights for
which the record date is prior to the date such share certificate is issued.
(ii) Nonassignability of Rights. No nonqualified
option Agreement shall be assignable or transferable by the person receiving
same except by will or the laws of descent and distribution. During the life
of such person, the nonqualified option shall be exercisable only by him or
her.
(iii) Other Provisions. Any Nonqualified Option
Agreement may contain such other terms, provisions and conditions as may be
determined by the Administrator. Nonqualified options granted to different
persons, or to the same person at different times, may be subject to terms,
conditions and restrictions which differ from each other.
7. Changes in Capital Structure.
(a) In the event that the outstanding shares of Common
Stock of the Company are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company by reason of merger, consolidation or reorganization in which the
Company is the surviving corporation or of a recapitalization, stock split,
combination of shares, reclassification, reincorporation, stock dividend (in
excess of 2%), or other change in the corporate structure of the Company,
appropriate adjustments shall be made by the Board of Directors in the
aggregate number and kind of shares subject to this Plan, and the number and
kind of shares and the price per share subject to outstanding nonqualified
options in order to preserve, but not to increase, the benefits to persons then
holding nonqualified options.
6
<PAGE> 8
(b) In the event that a Change of Control (as defined
below) occurs, the vesting of all nonqualified options shall be accelerated
and, concurrent with the effective date of the Change of Control, such persons
shall have the right to (i) exercise the nonqualified option in respect to any
or all of the shares then subject thereto, or (ii) to the extent applicable
depending upon the nature of the Change of Control, exchange the nonqualified
option for cash in an amount equal to the number of shares which as of the
effective date of the Change of Control may be acquired upon the exercise of
the nonqualified option, multiplied by the difference between (A) the fair
market value of the consideration to be paid per share in connection with the
Change of Control as determined by the Board of Directors, which determination
shall be final and binding on the optionee, and (B) the exercise price. Such
cash payment shall be paid within thirty (30) days following the consummation
of the Change of Control. Neither the approval of the Board or the Committee
shall be required in connection with such election and the cash distribution.
To the extent possible, the Administrator shall cause written notice of the
Change of Control to be given to the persons holding nonqualified options not
less than thirty (30) days prior to the anticipated effective date of the
Change of Control. In the event of a Change of Control, the Administrator may
take such other action as is equitable and fair. Upon consummation of the
Change in Control the Plan and all unexercised options granted hereunder shall
terminate.
(c) For the purposes of this Agreement, the term "Change
of Control" shall mean the occurrence of any of the following:
(i) Any "person," as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, a Company subsidiary, or a Company
employee benefit plan, including any trustee of such plan acting as trustee) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company (or a successor to
the Company) representing fifty percent (50%) or more of the combined voting
power of the then outstanding securities of the Company or such successor; or
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<PAGE> 9
(ii) At least a majority of the directors of the
Company constitute persons who were not at the time of their first election to
the Board, candidates proposed by a majority of the Board of Directors in
office prior to the time of such first election; or
(iii) A merger or consolidation in which the
Company is not the surviving entity, except for a transaction, the principal
purpose of which is to change the state in which the Company is incorporated;
or
(iv) A sale, transfer or other disposition of
assets involving fifty percent (50%) or more in value of the assets of the
Company; or
(v) The dissolution of the Company, or
liquidation of more than fifty percent (50%) in value of the Company; or
(vi) Any reverse merger in which the Company is a
surviving entity but in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from the persons
holding those securities immediately prior to such reverse merger.
8. Amendment and Termination of the Plan.
The Board of Directors of the Company may from time to time
alter, amend, suspend or terminate the Plan in such respects as the Board of
Directors may deem advisable; provided, however, that no such alteration,
amendment, suspension or termination shall be made which shall substantially
affect or impair the rights of any person under any nonqualified option
theretofore granted to him without his consent. Without limiting the
generality of the foregoing, to the extent permitted by applicable law, the
Board of Directors of the Company may alter or amend the Plan to comply with
requirements under the Internal Revenue Code relating to stock options which
give the optionee more favorable tax treatment than that applicable to options
granted under this Plan as of the date of its adoption. Upon any such
alteration or amendment, to the extent permitted by applicable law, any
outstanding option granted hereunder shall be subject to the more favorable tax
treatment afforded to an optionee pursuant to such terms and conditions as the
Administrator may determine.
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Unless the Plan shall theretofore have been terminated, the
Plan shall be effective on January 4, 1996, and shall terminate on January 4,
2006.
9. Application of Funds.
The proceeds received by the Company from the sale of Common
Stock pursuant to nonqualified options except as otherwise provided herein,
will be used for general corporate purposes.
10. No Obligation to Exercise Option or Right of Purchase.
The granting of a nonqualified option shall impose no
obligation upon the optionee to exercise such nonqualified option.
11. Continuance of Employment.
The Plan or the granting of any nonqualified option thereunder
shall not impose any obligation on the Company to continue the employment of
any optionee.
9
<PAGE> 1
EXHIBIT 4.2
NONQUALIFIED OPTION AGREEMENT
THIS NONQUALIFIED OPTION AGREEMENT (the "Agreement"), made as of the
_____ day of _________, 199__, between PLATINUM SOFTWARE CORPORATION, a
Delaware corporation (hereinafter referred to as the "Company"), and (Name), an
employee of the Company, its parent or one or more of its subsidiaries (the
"Optionee"), is made with reference to the following facts:
R E C I T A L S
A. Optionee is employed with the Company or a consultant
to the Company and is a valued and key employee of or a consultant to the
Company.
B. The Company desires, by affording the Optionee an
opportunity to purchase shares of Common Stock of the Company (hereinafter
called "Shares"), as hereinafter provided, to carry out the purpose of the
Nonqualified Stock Option Plan - 1996, a copy of which is attached hereto or
available from the Secretary of the Company (the "Plan").
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter
set forth, and for good and valuable consideration, the parties hereto have
agreed, and do hereby agree, as follows:
1. GRANT OF OPTION.
The Company hereby irrevocably grants to the Optionee the
right and option (hereinafter called the "Option") to purchase all or any part
of an aggregate of (Number of Shares) Shares (such number being subject to
adjustment as provided in Paragraph 7 hereof) on the terms and conditions
herein set forth. The Option granted herein is a "nonqualified option" and is
not subject to the provisions of Section 422A of the Internal Revenue Code of
1986, as amended.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall
be $________ per share (the "Exercise Price"), representing one hundred percent
(100%) of the fair market value of the shares as determined pursuant to Section
5 of the Plan as of the date hereof.
3. TERM OF OPTION.
The term of the Option shall commence on the date hereof and
all rights to purchase shares hereunder shall cease at 11:59 p.m. on the day
before the tenth (10th) anniversary of the date hereof, subject to earlier
termination as provided herein. Except as may otherwise be provided in this
Agreement, options granted hereunder may be cumulative and exercised as
follows:
(i) From and after ___________________ (the "Vesting
Commencement Date") and until one year from the Vesting Commencement Date, the
Option may not be exercised as to any of the Shares subject to the Option.
<PAGE> 2
(ii) During the period commencing one year from the
Vesting Commencement Date, the Option may be exercised for one-half (1/2) of
the Shares subject to the Option, and, thereafter, on each succeeding
anniversary of the Vesting Commencement Date, the Option may be exercised for
an additional one-fourth (1/4) of the Shares subject to the Option, such that
on and after three (3) years from the Vesting Commencement Date, the Option may
be exercised as to all of the Shares subject to the Option.
For the purpose of this Agreement, the Optionee shall be
deemed to be a "Service Provider" to the Company for so long as the Optionee is
an employee or advisor of the Company, or a parent or subsidiary of the
Company, or a corporation or a parent or subsidiary of a corporation issuing or
assuming an option to which Section 425(a) of the Internal Revenue Code of
1986, as amended, applies. A leave of absence (regardless of the reason
therefor) shall be deemed to constitute the cessation of Service Provider
status as of the commencement date of the leave, unless such leave is
authorized by the Company in writing and the Optionee recommences providing
services prior to the expiration date of such leave. Accordingly, the Optionee
shall receive credit as a Service Provider to the Company during a leave of
absence only if the leave is authorized by the Company and the Optionee
recommences providing services on or prior to the expiration date of the leave.
The purchase price of the Shares as to which the Option shall
be exercised shall be paid in full at the time of exercise, as provided in
Paragraph 9 below. Except as provided in Paragraph 5 hereof, the Option may
not be exercised at any time unless the Optionee shall have been continuously,
from the date hereof to the date of the exercise of the Option, a Service
Provider to the Company. The holder of the Option shall not have any of the
rights of a shareholder with respect to the Shares covered by the Option as to
any Shares of Common Stock not actually issued and delivered to Optionee.
4. NONTRANSFERABILITY.
The Option shall not be transferable otherwise than by will or
the laws of descent and distribution, and the Option may be exercised, during
the lifetime of the Optionee, only by Optionee. More particularly (but without
limiting the generality of the foregoing), the Option may not be assigned,
transferred (except as provided in Paragraph 6 hereof), pledged or hypothecated
in any way, shall not be assignable by operation of law and shall not be
subject to execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary to
the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without effect.
5. TERMINATION OF OPTION.
Except as provided below in this Section, this Option shall
terminate on the date Optionee ceases to be a Service Provider for the Company
(the "Termination Date"). Optionee shall be considered to be a Service
Provider to the Company for all purposes under this Paragraph 5 if the Board of
Directors or Administrator of the Plan determines that Optionee is rendering or
available to render substantial services as a part-time employee, consultant,
contractor or advisor to the Company or any Parent, Subsidiary or Affiliate of
the Company.
(a) TERMINATION GENERALLY. In the event Optionee ceases
to be a Service Provider to the Company for any reason except death or
disability, this Option, to the extent (and only to the extent) that it would
have been exercisable by Optionee on the Termination Date, may be exercised by
Optionee within three (3) months after the Termination Date, but in no event
later than the Expiration Date.
(b) DEATH OR DISABILITY. In the event Optionee ceases to
be a Service Provider to the Company because of the death of Optionee or the
disability of Optionee within the meaning of Section 22(e)(3) of
2
<PAGE> 3
the Code, this Option, to the extent (and only to the extent) that it would have
been exercisable by Optionee on the Termination Date, may be exercised by
Optionee (or Optionee's legal representative) within one year after the
Termination Date, but in no event later than the Expiration Date.
6. OTHER TERMINATIONS OR EXPIRATIONS.
(a) In addition to any other event causing an expiration
or termination of this Option, this Option shall expire and all rights to
purchase Shares shall cease (to the extent not theretofore terminated or
expired as herein provided) upon the effective date of a Change of Control. To
the extent applicable, based upon the event causing a Change of Control, the
Company shall give written notice to the Optionee of the proposed Change of
Control not less than thirty (30) days prior to the anticipated effective date
of the Change of Control, and the Option shall be accelerated and, concurrent
with the effective date of the Change of Control, the Optionee shall have the
right to either (i) exercise the Option in respect to any or all of the Shares
then subject thereto, or (ii) exchange this Option for cash in an amount equal
to the number of Shares which as of the effective date of the Change of Control
may be acquired upon the exercise of the Option, multiplied by the difference
between (1) the fair market value of the consideration to be paid per Share in
connection with the Change of Control as determined by the Board of Directors,
which determination shall be final and binding on Optionee, and (2) The
Exercise Price. Such cash payment shall be paid within thirty (30) days
following the consummation of the Change of Control. Neither the approval of
the Board or the Committee shall be required in connection with such election
and the cash distribution.
(b) For the purposes of this Agreement, the term "Change
of Control" shall mean the occurrence of any of the following:
(i) Any "person," as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, a Company subsidiary, or a Company
employee benefit plan, including any trustee of such plan acting as trustee) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company (or a successor to
the Company) representing fifty percent (50%) or more of the combined voting
power of the then outstanding securities of the Company or such successor; or
(ii) At least a majority of the directors of the
Company constitute persons who were not at the time of their first election to
the Board, candidates proposed by a majority of the Board of Directors in
office prior to the time of such first election; or
(iii) A merger or consolidation in which the
Company is not the surviving entity, except for a transaction, the principal
purpose of which is to change the state in which the Company is incorporated;
or
(iv) A sale, transfer or other disposition of
assets involving fifty percent (50%) or more in value of the assets of the
Company; or
(v) The dissolution of the Company, or
liquidation of more than fifty percent (50%) in value of the Company; or
(vi) Any reverse merger in which the Company is a
surviving entity but in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from the persons
holding those securities immediately prior to such reverse merger.
3
<PAGE> 4
7. ADJUSTMENTS.
The number and class of shares subject to this Option, and the
purchase price per share (but not the total purchase price), and the minimum
number of shares as to which this Option may be exercised at any one time,
shall all be proportionately adjusted in the event of any change or increase or
decrease in the number of issued shares of Common Stock in the Company, without
receipt of consideration by the Company, which result from a split-up or
consolidation of shares, payment of a share dividend (in excess of two percent
(2%)), a recapitalization, combination of shares or other like capital
adjustment, so that, upon exercise of this Option, the Optionee shall receive
the number and class of shares Optionee would have received had Optionee been
the holder of the number of shares of Common Stock in the Company, for which
this Option is being exercised, on the date of such change or increase or
decrease in the number of issued shares of Common Stock in the Company.
Adjustments under this paragraph shall be made by the Board of Directors whose
determination with respect thereto shall be final and conclusive. No
fractional share shall be issued under this Option or upon any such adjustment.
8. NOTICE.
All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, by United States certified or registered mail, prepaid, to
the parties or their assignees at the addresses set forth opposite their
signatures below (or such other address as shall be given in writing by either
party to the other).
9. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Option Agreement,
this Option may be exercised by written notice to the Company, at its principal
office in the State of California, which presently is located at 195 Technology
Drive, Irvine, California 92718-2402. Such notice shall state the election to
exercise the Option and the number of shares in respect of which it is being
exercised and shall be signed by the person or persons so exercising the
Option. Such notice shall be accompanied by payment in (i) cash, certified
check, bank draft; (ii) (subject to the limitations and with the prior approval
required under Paragraph 3 above) certificates for shares of the Common Stock
of the Company; or (iii) (subject to the limitations and with the terms and
provisions specified pursuant to Paragraph 3 above) with the prior written
consent and approval of the Company, by the execution and delivery of
Optionee's promissory note in the principal amount of the exercise price, with
such term, interest rate and other terms and provisions, including, without
limitation, requiring the Shares acquired upon exercise to be pledged to the
Company to secure payment of the note, as the Board of Directors may specify,
equal to at the time of exercise, in the aggregate, the full purchase price of
such shares, (iv) by cancellation of indebtedness of the Company to Optionee,
(v) by waiver of compensation due or accrued to Optionee for services rendered,
(vi) provided that a public market for the Company's stock exists, through a
"same day sale" commitment from the Optionee and a broker-dealer that is a
member of the National Association of Securities Dealers (an "NASD" Dealer)
whereby the Optionee irrevocably elects to exercise his Option and to sell a
portion of the Shares so purchased to pay for the exercise price and whereby
the NASD Dealer irrevocably commits upon receipt of such Shares to forward the
exercise price directly to the Company, (vii) provided that a public market for
the Company's stock exists, through a "margin" commitment from the Optionee and
NASD Dealer whereby the Optionee irrevocably elects to exercise this Option and
to pledge the Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the exercise price,
and whereby the NASD Dealer irrevocably commits upon receipt of such Shares to
forward the exercise price directly to the Company, or (viii) any combination
of (i), (ii), (iii), (iv), (v), (vi) or (vii) above, and the Company shall
deliver a certificate or certificates representing the Shares subject to such
exercise as soon as practicable after the notice shall be received.
4
<PAGE> 5
The certificate or certificates for the shares as to which the Option shall
have been so exercised shall be registered in the name of the person or persons
so exercising the Option and shall be delivered as provided above to or upon
the written order of the person or persons exercising the Option. In the event
the Option shall be exercised by any person or persons other than the Optionee
in accordance with the terms hereof, such notice shall be accompanied by
appropriate proof of the right of such person or persons to exercise the
Option. All shares that shall be purchased upon the exercise of the Option as
provided herein shall be fully paid and nonassessable. The holder of this
Option shall not be entitled to the privileges of share ownership as to any
shares of Common Stock not actually issued and delivered to Optionee. Until
and unless the Plan and the issuance of securities thereunder shall have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
the Optionee hereby certifies that all shares of Common Stock in the Company
purchased or to be purchased by Optionee pursuant to the exercise of this
Option are being or are to be acquired by Optionee for investment and not with
a view to the distribution thereof.
10. NO AGREEMENT TO EMPLOY.
Nothing in this Agreement shall be construed to constitute or
be evidence of any agreement or understanding, express or implied, on the part
of the Company to employ or retain Optionee for any specific period of time.
11. MARKET STANDOFF AGREEMENT.
Optionee agrees in connection with any registration of the
Company's securities that, upon the request of the Company or the underwriters
managing any public offering of the Company's securities, Optionee will not
sell or otherwise dispose of any Shares without the prior written consent of
the Company or such underwriters, as the case may be, for a period of time (not
to exceed 180 days) from the effective date of such registration as the Company
or the underwriters may specify.
12. STOP-TRANSFER NOTICES.
Optionee understands and agrees that, in order to ensure
compliance with the restrictions referred to herein, the Company may issue
appropriate "stop-transfer" instructions to its transfer agent, if any, and
that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
13. GENERAL.
The Company shall at all times during the term of the Option
reserve and keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of this Option Agreement, shall pay all
original issue and transfer taxes with respect to the issue and transfer of
shares pursuant hereto and all other fees and expenses necessarily incurred by
the Company in connection therewith, and will from time to time use its best
efforts to comply with all laws and regulations, which, in the opinion of
counsel for the Company, shall be applicable thereto.
5
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this Nonqualified Option Agreement
to be duly executed by its officers thereunto duly authorized, and the Optionee
has hereunto set his hand, all as of the day and year first above written.
COMPANY:
PLATINUM SOFTWARE CORPORATION
Address:
- -------
195 Technology Drive
Irvine, CA 92718-2402 By:
------------------------------
OPTIONEE:
Address:
- -------
- ------------------------------
- ------------------------------
----------------------------------
(Name)
6
<PAGE> 1
EXHIBIT 5.1
[STRADLING, YOCCA, CARLSON & RAUTH LETTERHAD]
June 19, 1996
Platinum Software Corporation
195 Technology Drive
Irvine, California 92718
Re: Registration Statement on Form S-8 - 1996 Nonqualified Stock
Option Plan
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement
on Form S-8 (the "Registration Statement") being filed by Platinum Software
Corporation, a Delaware corporation (the "Company"), with the Securities and
Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended, of an aggregate of 500,000 shares of the Company's
common stock, $0.001 par value ("Common Stock"), issuable under the Company's
1996 Nonqualified Stock Option Plan (the "Plan").
We have examined the proceedings heretofore taken and are familiar
with the additional proceedings proposed to be taken by the Company in
connection with the authorization, issuance and sale of the securities referred
to above.
Based on the foregoing, it is our opinion that:
1. stock options, when issued in accordance with the
Plan, will be legally and validly issued and binding obligations of the
Company; and
2. 500,000 shares of Common Stock, when issued pursuant
to the Plan and against full payment in accordance with the respective terms
and conditions of the Plan, will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
[SIG]
STRADLING, YOCCA, CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of our
reports dated July 7, 1994 included in Platinum Software Corporation's Form
10-K for the year ended June 30, 1995 and to all references to our Firm
included in this Registration Statement.
[SIG]
ARTHUR ANDERSEN LLP
San Jose, California
June 13, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1996 Nonqualified Stock Option Plan of
Platinum Software Corporation for the registration of 500,000 shares of its
common stock of our report dated August 18, 1995, with respect to the
consolidated financial statements and schedules of Platinum Software
Corporation included in its Annual Report (Form 10-K) for the year ended June
30, 1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
-------------------------
Ernst & Young LLP
Orange County, California
June 18, 1996
