<PAGE>
As filed with the Securities and Exchange Commission on May [30], 1997
Registration No. 333-___________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------------------
METACREATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-4102687
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
6303 Carpinteria Avenue
Carpinteria, California 93013
-----------------------------
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
METACREATIONS CORPORATION 1995 STOCK PLAN
RAY DREAM, INC. 1992 STOCK OPTION PLAN
FRACTAL DESIGN CORPORATION 1995 DIRECTORS' STOCK OPTION PLAN
FRACTAL DESIGN CORPORATION 1993 STOCK OPTION PLAN
FRACTAL DESIGN CORPORATION AMENDED AND RESTATED
1995 STOCK OPTION PLAN
(Full title of plans)
-----------------------------
Terance A. Kinninger
Chief Financial Officer
MetaCreations Corporation
6303 Carpinteria Avenue
Carpinteria, California 93013
(805) 566-6200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------------------
Copy to:
Jeffrey D. Saper, Esq.
Kaivan M. Shakib, Esq.
Romy S. Taubman, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value
- -----------------------------------------------------------------------------------------------------------------
- Outstanding under Fractal's 1992 68,270 $ 2.853 (1) $ 194,774.31 $ 59.02
Assumed Ray Dream, Inc. Stock Option Plan
- -----------------------------------------------------------------------------------------------------------------
- Outstanding under Fractal's 1993 836,016 $ 3.451 (1) $ 2,885,091.22 $ 874.27
Stock Option Plan
- -----------------------------------------------------------------------------------------------------------------
- Outstanding under Fractal's 1995 703,446 $13.260 (1) $ 9,327,693.96 $2,826.57
Directors' Stock Option Plan
- -----------------------------------------------------------------------------------------------------------------
- Outstanding under Fractal's 1995 44,940 $18.914 (1) $ 849,995.16 $ 257.57
Stock Option Plan
- -----------------------------------------------------------------------------------------------------------------
- Newly reserved under the Company's 1,500,000 $11.8125 (2) $17,718,750.00 $5,369.31
1995 Stock Option Plan
- -----------------------------------------------------------------------------------------------------------------
Total 3,152,672 $50.2905 $30,976,304.65 $9,425.74
=================================================================================================================
</TABLE>
(1) Computed in accordance with Rule 457(h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee.
Computation based on the weighted average per share exercise price (rounded
to the nearest 1/10th of one cent) of outstanding options under the
referenced plan, the shares issuable under which are registered hereby.
(2) Estimated in accordance with Rule 457(h) and 457(c) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the registration
fee. The computation with respect to unissued options is based upon the
average of the high and low sale prices of the Common Stock as reported on
the NASDAQ National Market on May 29, 1997.
<PAGE>
PART I: INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
----------------
Omitted pursuant to the instructions and provisions of Form S-8.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
--------------------------------------------------------------
Omitted pursuant to the instructions and provisions of Form S-8.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE
-------------------------------------
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant:
(a) The Registrant's Annual Report on Form 10-K, file no. 000-27168,
for the fiscal year ended December 31, 1996 filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Form 10-Q, file no. 000-27168, for the fiscal
quarter ending March 31, 1997, filed pursuant to Section 13(a) of the Exchange
Act.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (File No. 000-27168) filed
pursuant to Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
(d) The Registrant's Joint Proxy Statement/Prospectus, dated April 28,
1997, filed pursuant to Regulation 14A and 14C of the Exchange Act.
All documents filed by Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date hereof, and prior to the filing
of a post-effective amendment which indicates that all securities offered
hereunder have been sold or which de-registers all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents.
The MetaCreations Corporation documents incorporated by reference
herein contain forward-looking statements that involve risks and uncertainties.
MetaCreations Corporation's actual results may differ significantly from the
results discussed in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, the risks identified in the
respective documents incorporated by reference.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
II-1
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
The validity of the issuance of shares of Common Stock offered hereby
will be passed upon for the Registrant by Wilson Sonsini Goodrich & Rosati,
Professional Corporation ("WSGR"), Palo Alto, California. Certain members of
WSGR, or investment partnerships of which such persons are partners,
beneficially own an aggregate of approximately 25,000 shares of the Registrant's
Common Stock.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
-----------------------------------------
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). Article 9 of the Company's Restated Certificate of Incorporation and
Article 6.1 of the Bylaws of the Company provide for indemnification of certain
agents to the maximum extent permitted by the Delaware General Corporation Law.
Persons covered by these indemnification provisions include current and former
directors, officers, employees and other agents of the Company, as well as
persons who serve at the request of the Company as directors, officers,
employees or agents of another enterprise.
ITEM 7. EXEMPTION FORM REGISTRATION CLAIMED
-----------------------------------
Not applicable
ITEM 8. EXHIBITS
--------
Exhibit
Number Document
- ------ --------------------------------------------------------------------
4.1 MetaCreations Corporation 1995 Stock Plan, as amended.
4.2 Fractal Design Corporation 1992 Assumed Ray Dream, Inc. Stock Option
Plan
4.3 Fractal Design Corporation 1993 Stock Option Plan
4.4 Fractal Design Corporation 1995 Stock Option Plan
4.5 Fractal Design Corporation 1995 Directors' Stock Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
II-2
<PAGE>
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;
(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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
-----------------
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(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
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.
II-3
<PAGE>
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 Carpinteria, State of California, on May 30, 1997.
METACREATIONS CORPORATION
By: /s/ Terance A. Kinninger
--------------------------------------------
Terance A. Kinninger,
Chief Financial Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Terance A. Kinninger, his attorney-in-
fact, with the power of substitution, for him in any and all capacities, to sign
any amendment to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John J. Wilczak Chairman, President and Chief Executive May 30, 1997
- ----------------------------- Officer (Principal Executive Officer)
John J. Wilczak
/s/ Terance A. Kinninger Chief Financial Officer (Principal May 30, 1997
- ----------------------------- Financial and Accounting Officer)
Terance A. Kinninger
/s/ Kai Krause Director and Senior Science and Design May 30, 1997
- ----------------------------- Officer
Kai Krause
/s/ Samuel H. Jones, Jr. Director May 30, 1997
- -----------------------------
Samuel H. Jones, Jr.
/s/ Bert Kolde Director May 30, 1997
- -----------------------------
Bert Kolde
/s/ William H. Lane III Director May 30, 1997
- -----------------------------
William H. Lane III
/s/ Howard L. Morgan Director May 30, 1997
- -----------------------------
Howard L. Morgan
/s/ Mark Zimmer Director May 30, 1997
- -----------------------------
Mark Zimmer
/s/ Thomas Hedges Director May 30, 1997
- -----------------------------
Thomas Hedges
/s/ Arthur Collmeyer Director May 30, 1997
- -----------------------------
Arthur Collmeyer
/s/ Terance A. Kinninger May 30, 1997
- -----------------------------
Terance A. Kinninger
Attorney-In-Fact
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Document Page
- ------- ---------------------------------------- ------------
<C> <S> <C>
4.1 MetaCreations Corporation 1995 Stock
Plan, as amended
4.2 Fractal Design Corporation 1992 Assumed
Ray Dream, Inc. Stock Option Plan
4.3 Fractal Design Corporation 1993 Stock
Option Plan
4.4 Fractal Design Corporation 1995 Stock
4.5 Option Plan
5.1 Fractal Design Corporation 1995
Directors' Stock Option Plan
Opinion of Wilson Sonsini Goodrich &
Rosati, Professional Corporation
23.1 Consent of Coopers & Lybrand L.L.P.,
independent accountants.
23.2 Consent of Wilson Sonsini Goodrich &
Rosati, Professional Corporation
(included in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
</TABLE>
<PAGE>
EXHIBIT 4.1
-----------
As Amended on May 29, 1997
METACREATIONS CORPORATION
(FORMERLY KNOWN AS METATOOLS, INC.)
1995 STOCK PLAN
1. Purposes of the Plan. The purposes of this Stock Plan are:
--------------------
. to attract and retain the best available personnel for positions of
substantial responsibility,
. to provide additional incentive to Employees and Consultants, and
. to promote the success of the Company's business.
Options granted under the Plan may be Incentive Stock Options or Nonstatutory
Stock Options, as determined by the Administrator at the time of grant. Stock
Purchase Rights may also be granted under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" means the Board or any of its Committees as shall
-------------
be administering the Plan, in accordance with Section 4 of the Plan.
(b) "Applicable Laws" means the legal requirements relating to the
---------------
administration of stock option plans under state corporate and securities laws
and the Code.
(c) "Board" means the Board of Directors of the Company.
-----
(d) "Code" means the Internal Revenue Code of 1986, as amended.
----
(e) "Committee" means a Committee appointed by the Board in
---------
accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
------------
(g) "Company" means METACREATIONS Corporation, a Delaware corporation
-------
formerly known as MetaTools, Inc.
(h) "Consultant" means any person, including an advisor, engaged by
----------
the Company or a Parent or Subsidiary to render services and who is compensated
for such services. The term "Consultant" shall not include Directors who are
paid only a director's fee by the Company or who are not compensated by the
Company for their services as Directors.
(i) "Continuous Status as an Employee or Consultant" means that the
----------------------------------------------
employment or consulting relationship with the Company, any Parent, or
Subsidiary, is not interrupted or terminated. Continuous Status as an Employee
or Consultant shall not be considered interrupted in the case of (i) any leave
of absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary, or any successor. A
leave of absence approved by the Company shall include sick leave, military
leave, or any other personal leave approved by an authorized representative of
the Company. For purposes of Incentive Stock Options, no such leave may exceed
ninety days, unless reemployment upon expiration of such leave is guaranteed by
statute or contract. If reemployment upon expiration of a leave of absence
approved by the Company is not so guaranteed, on the
-1-
<PAGE>
181st day of such leave any Incentive Stock Option held by the Optionee shall
cease to be treated as an Incentive Stock Option and shall be treated for tax
purposes as a Nonstatutory Stock Option.
(j) "Director" means a member of the Board.
--------
(k) "Disability" means total and permanent disability as defined in
----------
Section 22(e)(3) of the Code.
(l) "Employee" means any person, including Officers and Directors,
--------
employed by the Company or any Parent or Subsidiary of the Company. Neither
service as a Director nor payment of a director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
(n) "Fair Market Value" means, as of any date, the value of Common
-----------------
Stock determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the Nasdaq National
Market of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a Share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales
were reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in Common Stock) on the last market trading day prior
to the day of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System (but not on
the Nasdaq National Market thereof) or is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day of
determination, as reported in The Wall Street Journal or such other source as
the Administrator deems reliable;
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value shall be determined in good faith by the Administrator.
(o) "Incentive Stock Option" means an Option intended to qualify as an
----------------------
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(p) "Nonstatutory Stock Option" means an Option not intended to
-------------------------
qualify as an Incentive Stock Option.
(q) "Notice of Grant" means a written notice evidencing certain terms
---------------
and conditions of an individual Option or Stock Purchase Right grant. The Notice
of Grant is part of the Option Agreement.
(r) "Officer" means a person who is an officer of the Company within
-------
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(s) "Option" means a stock option granted pursuant to the Plan.
------
(t) "Option Agreement" means a written agreement between the Company
----------------
and an Optionee evidencing the terms and conditions of an individual Option
grant. The Option Agreement is subject to the terms and conditions of the Plan.
(u) "Option Exchange Program" means a program whereby outstanding
-----------------------
options are surrendered in exchange for options with a lower exercise price.
(v) "Optioned Stock" means the Common Stock subject to an Option or
--------------
Stock Purchase Right.
-2-
<PAGE>
(w) "Optionee" means an Employee or Consultant who holds an
--------
outstanding Option or Stock Purchase Right.
(x) "Parent" means a "parent corporation", whether now or hereafter
------
existing, as defined in Section 424(e) of the Code.
(y) "Plan" means this 1995 Stock Plan.
----
(z) "Restricted Stock" means shares of Common Stock acquired pursuant
----------------
to a grant of Stock Purchase Rights under Section 11 below.
(aa) "Restricted Stock Purchase Agreement" means a written agreement
-----------------------------------
between the Company and the Optionee evidencing the terms and restrictions
applying to stock purchased under a Stock Purchase Right. The Restricted Stock
Purchase Agreement is subject to the terms and conditions of the Plan and the
Notice of Grant.
(bb) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any
----------
successor to Rule 16b-3, as in effect when discretion is being exercised with
respect to the Plan.
(cc) "Section 16(b)" means Section 16(b) of the Securities Exchange
-------------
Act of 1934, as amended.
(dd) "Share" means a share of the Common Stock, as adjusted in
-----
accordance with Section 13 of the Plan.
(ee) "Stock Purchase Right" means the right to purchase Common Stock
--------------------
pursuant to Section 11 of the Plan, as evidenced by a Notice of Grant.
(ff) "Subsidiary" means a "subsidiary corporation", whether now or
----------
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 13 of
-------------------------
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 2,000,000 which number includes 426,300 Shares that were
previously authorized but unissued under the Company's 1994 Incentive Stock
Option, Non-Qualified Stock Option and Restricted Stock Purchase Plan. The
Shares may be authorized, but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes unexercisable
without having been exercised in full, or is surrendered pursuant to an Option
Exchange Program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued under
--------
the Plan, whether upon exercise of an Option or Right, shall not be returned to
the Plan and shall not become available for future distribution under the Plan,
except that if Shares of Restricted Stock are repurchased by the Company at
their original purchase price, and the original purchaser of such Shares did not
receive any benefits of ownership of such Shares, such Shares shall become
available for future grant under the Plan. For purposes of the preceding
sentence, voting rights shall not be considered a benefit of Share ownership.
4. Administration of the Plan.
--------------------------
(a) Procedure.
---------
(i) Multiple Administrative Bodies. If permitted by Rule 16b-3, the
------------------------------
Plan may be administered by different bodies with respect to Directors, Officers
who are not Directors, and Employees who are neither Directors nor Officers.
-3-
<PAGE>
(ii) Administration With Respect to Directors and Officers Subject
-------------------------------------------------------------
to Section 16(b). With respect to Option or Stock Purchase Right grants made to
- ----------------
Employees who are also Officers or Directors subject to Section 16(b) of the
Exchange Act, the Plan shall be administered by (A) the Board, if the Board may
administer the Plan in a manner complying with the rules under Rule 16b-3
relating to the disinterested administration of employee benefit plans under
which Section 16(b) exempt discretionary grants and awards of equity securities
are to be made, or (B) a committee designated by the Board to administer the
Plan, which committee shall be constituted to comply with the rules under Rule
16b-3 relating to the disinterested administration of employee benefit plans
under which Section 16(b) exempt discretionary grants and awards of equity
securities are to be made. Once appointed, such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board. From
time to time the Board may increase the size of the Committee and appoint
additional members, remove members (with or without cause) and substitute new
members, fill vacancies (however caused), and remove all members of the
Committee and thereafter directly administer the Plan, all to the extent
permitted by the rules under Rule 16b-3 relating to the disinterested
administration of employee benefit plans under which Section 16(b) exempt
discretionary grants and awards of equity securities are to be made.
(iii) Administration With Respect to Other Persons. With respect to
--------------------------------------------
Option or Stock Purchase Right grants made to Employees or Consultants who are
neither Directors nor Officers of the Company, the Plan shall be administered by
(A) the Board or (B) a committee designated by the Board, which committee shall
be constituted to satisfy Applicable Laws. Once appointed, such Committee shall
serve in its designated capacity until otherwise directed by the Board. The
Board may increase the size of the Committee and appoint additional members,
remove members (with or without cause) and substitute new members, fill
vacancies (however caused), and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent permitted by
Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan,
---------------------------
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(n) of the Plan;
(ii) to select the Consultants and Employees to whom Options and
Stock Purchase Rights may be granted hereunder;
(iii) to determine whether and to what extent Options and Stock
Purchase Rights or any combination thereof, are granted hereunder;
(iv) to determine the number of shares of Common Stock to be covered
by each Option and Stock Purchase Right granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder. Such terms and conditions
include, but are not limited to, the exercise price, the time or times when
Options or Stock Purchase Rights may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Option or Stock
Purchase Right or the shares of Common Stock relating thereto, based in each
case on such factors as the Administrator, in its sole discretion, shall
determine;
(vii) to reduce the exercise price of any Option or Stock Purchase
Right to the then current Fair Market Value if the Fair Market Value of the
Common Stock covered by such Option or Stock Purchase Right shall have declined
since the date the Option or Stock Purchase Right was granted;
(viii) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
-4-
<PAGE>
(ix) to prescribe, amend and rescind rules and regulations relating
to the Plan, including rules and regulations relating to sub-plans established
for the purpose of qualifying for preferred tax treatment under foreign tax
laws;
(x) to modify or amend each Option or Stock Purchase Right (subject
to Section 15(c) of the Plan), including the discretionary authority to extend
the post-termination exercisability period of Options longer than is otherwise
provided for in the Plan;
(xi) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option or Stock Purchase Right
previously granted by the Administrator;
(xii) to institute an Option Exchange Program;
(xiii) to determine the terms and restrictions applicable to Options
and Stock Purchase Rights and any Restricted Stock; and
(xiv) to make all other determinations deemed necessary or advisable
for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's decisions,
----------------------------------
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options or Stock Purchase Rights.
5. Eligibility. Nonstatutory Stock Options and Stock Purchase Rights may
-----------
be granted to Employees and Consultants. Incentive Stock Options may be granted
only to Employees. If otherwise eligible, an Employee or Consultant who has
been granted an Option or Stock Purchase Right may be granted additional Options
or Stock Purchase Rights.
6. Limitations.
-----------
(a) Each Option shall be designated in the written option agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designation, to the extent that the aggregate Fair Market
Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 6(a), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(b) Neither the Plan nor any Option or Stock Purchase Right shall confer
upon an Optionee any right with respect to continuing the Optionee's employment
or consulting relationship with the Company, nor shall they interfere in any way
with the Optionee's right or the Company's right to terminate such employment or
consulting relationship at any time, with or without cause.
(c) The following limitations shall apply to grants of Options and Stock
Purchase Rights to Employees:
(i) No Employee shall be granted, in any fiscal year of the Company,
Options and Stock Purchase Rights to purchase more than 300,000 Shares.
(ii) In connection with his or her initial employment, an Employee
may be granted Options and Stock Purchase Rights to purchase up to an additional
150,000 Shares which shall not count against the limit set forth in subsection
(i) above.
-5-
<PAGE>
(iii) The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 13.
(iv) If an Option or Stock Purchase Right is canceled in the same
fiscal year of the Company in which it was granted (other than in connection
with a transaction described in Section 13), the canceled Option or Stock
Purchase Right will be counted against the limits set forth in subsections (i)
and (ii) above. For this purpose, if the exercise price of an Option or Stock
Purchase Right is reduced, the transaction will be treated as a cancellation of
the Option or Stock Purchase Right and the grant of a new Option or Stock
Purchase Right.
7. Term of Plan. Subject to Section 19 of the Plan, the Plan shall become
------------
effective upon the earlier to occur of its adoption by the Board or its approval
by the shareholders of the Company as described in Section 19 of the Plan. It
shall continue in effect for a term of ten (10) years unless terminated earlier
under Section 15 of the Plan.
8. Term of Option. The term of each Option shall be stated in the Notice
--------------
of Grant; provided, however, that in the case of an Incentive Stock Option, the
term shall be ten (10) years from the date of grant or such shorter term as may
be provided in the Notice of Grant. Moreover, in the case of an Incentive Stock
Option granted to an Optionee who, at the time the Incentive Stock Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Incentive Stock Option shall be five (5) years from the date of grant or
such shorter term as may be provided in the Notice of Grant.
9. Option Exercise Price and Consideration.
---------------------------------------
(a) Exercise Price. The per share exercise price for the Shares to be
--------------
issued pursuant to exercise of an Option shall be determined by the
Administrator, subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time the Incentive Stock
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the per Share exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of grant.
(B) granted to any Employee other than an Employee described in
paragraph (A) immediately above, the per Share exercise price shall be no less
than 100% of the Fair Market Value per Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator.
(b) Waiting Period and Exercise Dates. At the time an Option is granted,
---------------------------------
the Administrator shall fix the period within which the Option may be exercised
and shall determine any conditions which must be satisfied before the Option may
be exercised. In so doing, the Administrator may specify that an Option may not
be exercised until the completion of a service period.
(c) Form of Consideration. The Administrator shall determine the
---------------------
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator shall
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
-6-
<PAGE>
(iv) other Shares which (A) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six months
on the date of surrender, and (B) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised;
(v) delivery of a properly executed exercise notice together with
such other documentation as the Administrator and the broker, if applicable,
shall require to effect an exercise of the Option and delivery to the Company of
the sale or loan proceeds required to pay the exercise price;
(vi) a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee's participation
in any Company-sponsored deferred compensation program or arrangement;
(vii) any combination of the foregoing methods of payment; or
(viii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws.
10. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted
-----------------------------------------------
hereunder shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator and set forth
in the Option Agreement.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i)
written notice of exercise (in accordance with the Option Agreement) from the
person entitled to exercise the Option, and (ii) full payment for the Shares
with respect to which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by the Option Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his or her spouse. Until the stock
certificate evidencing such Shares is issued (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such
stock certificate promptly after the Option is exercised. No adjustment will be
made for a dividend or other right for which the record date is prior to the
date the stock certificate is issued, except as provided in Section 13 of the
Plan.
Exercising an Option in any manner shall decrease the number of
Shares thereafter available, both for purposes of the Plan and for sale under
the Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship. Upon
----------------------------------------------------
termination of an Optionee's Continuous Status as an Employee or Consultant,
other than upon the Optionee's death or Disability, the Optionee may exercise
his or her Option, but only within such period of time as is specified in the
Notice of Grant, and only to the extent that the Optionee was entitled to
exercise it at the date of termination (but in no event later than the
expiration of the term of such Option as set forth in the Notice of Grant). In
the absence of a specified time in the Notice of Grant, the Option shall remain
exercisable for three (3) months following the Optionee's termination. In the
case of an Incentive Stock Option, such period of time for exercise shall not
exceed three (3) months from the date of termination. If, on the date of
termination, the Optionee is not entitled to exercise the Optionee's entire
Option, the Shares covered by the unexercisable portion of the Option shall
revert to the Plan. If, after termination, the Optionee does not exercise his or
her Option within the time specified by the Administrator, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
-7-
<PAGE>
Notwithstanding the above, in the event of an Optionee's change in
status from Consultant to Employee or Employee to Consultant, an Optionee's
Continuous Status as an Employee or Consultant shall not automatically terminate
solely as a result of such change in status. However, in such event, an
Incentive Stock Option held by the Optionee shall cease to be treated as an
Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory
Stock Option three months and one day following such change of status.
(c) Disability of Optionee. In the event that an Optionee's Continuous
----------------------
Status as an Employee or Consultant terminates as a result of the Optionee's
Disability, the Optionee may exercise his or her Option at any time within
twelve (12) months from the date of such termination, but only to the extent
that the Optionee was entitled to exercise it at the date of such termination
(but in no event later than the expiration of the term of such Option as set
forth in the Notice of Grant). If, at the date of termination, the Optionee is
not entitled to exercise his or her entire Option, the Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the time
specified herein, the Option shall terminate, and the Shares covered by such
Option shall revert to the Plan.
(d) Death of Optionee. In the event of the death of an Optionee, the
-----------------
Option may be exercised at any time within twelve (12) months following the date
of death (but in no event later than the expiration of the term of such Option
as set forth in the Notice of Grant), by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent that the Optionee was entitled to exercise the Option at the
date of death. If, at the time of death, the Optionee was not entitled to
exercise his or her entire Option, the Shares covered by the unexercisable
portion of the Option shall immediately revert to the Plan. If, after death, the
Optionee's estate or a person who acquired the right to exercise the Option by
bequest or inheritance does not exercise the Option within the time specified
herein, the Option shall terminate, and the Shares covered by such Option shall
revert to the Plan.
(e) Rule 16b-3. Options granted to individuals subject to Section 16 of
----------
the Exchange Act ("Insiders") must comply with the applicable provisions of Rule
16b-3 and shall contain such additional conditions or restrictions as may be
required thereunder to qualify for the maximum exemption from Section 16 of the
Exchange Act with respect to Plan transactions.
11. Stock Purchase Rights.
---------------------
(a) Rights to Purchase. Stock Purchase Rights may be issued either
------------------
alone, in addition to, or in tandem with other awards granted under the Plan
and/or cash awards made outside of the Plan. After the Administrator determines
that it will offer Stock Purchase Rights under the Plan, it shall advise the
offeree in writing, by means of a Notice of Grant, of the terms, conditions and
restrictions related to the offer, including the number of Shares that the
offeree shall be entitled to purchase, the price to be paid, and the time within
which the offeree must accept such offer, which shall in no event exceed six (6)
months from the date upon which the Administrator made the determination to
grant the Stock Purchase Right. The offer shall be accepted by execution of a
Restricted Stock Purchase Agreement in the form determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines otherwise,
-----------------
the Restricted Stock Purchase Agreement shall grant the Company a repurchase
option exercisable upon the voluntary or involuntary termination of the
purchaser's employment with the Company for any reason (including death or
Disability). The purchase price for Shares repurchased pursuant to the
Restricted Stock purchase agreement shall be the original price paid by the
purchaser and may be paid by cancellation of any indebtedness of the purchaser
to the Company. The repurchase option shall lapse at a rate determined by the
Administrator.
(c) Rule 16b-3. Stock Purchase Rights granted to Insiders, and Shares
----------
purchased by Insiders in connection with Stock Purchase Rights, shall be subject
to any restrictions applicable thereto in compliance with Rule 16b-3. An Insider
may only purchase Shares pursuant to the grant of a Stock Purchase Right, and
may only sell Shares purchased pursuant to the grant of a Stock Purchase Right,
during such time or times as are permitted by Rule 16b-3.
-8-
<PAGE>
(d) Other Provisions. The Restricted Stock Purchase Agreement shall
----------------
contain such other terms, provisions and conditions not inconsistent with the
Plan as may be determined by the Administrator in its sole discretion. In
addition, the provisions of Restricted Stock Purchase Agreements need not be the
same with respect to each purchaser.
(e) Rights as a Shareholder. Once the Stock Purchase Right is exercised,
-----------------------
the purchaser shall have the rights equivalent to those of a shareholder, and
shall be a shareholder when his or her purchase is entered upon the records of
the duly authorized transfer agent of the Company. No adjustment will be made
for a dividend or other right for which the record date is prior to the date the
Stock Purchase Right is exercised, except as provided in Section 13 of the Plan.
12. Non-Transferability of Options and Stock Purchase Rights. An Option or
--------------------------------------------------------
Stock Purchase Right may not be sold, pledged, assigned, hypothecated,
transferred, or disposed of in any manner other than by will or by the laws of
descent or distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee.
13. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset
------------------------------------------------------------------------
Sale.
- ----
(a) Changes in Capitalization. Subject to any required action by the
-------------------------
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and Stock Purchase Right, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options or Stock Purchase Rights have yet been granted or which have
been returned to the Plan upon cancellation or expiration of an Option or Stock
Purchase Right, as well as the price per share of Common Stock covered by each
such outstanding Option or Stock Purchase Right, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option or Stock
Purchase Right.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
--------------------------
or liquidation of the Company, to the extent that an Option or Stock Purchase
Right has not been previously exercised, it will terminate immediately prior to
the consummation of such proposed action. The Board may, in the exercise of its
sole discretion in such instances, declare that any Option or Stock Purchase
Right shall terminate as of a date fixed by the Board and give each Optionee the
right to exercise his or her Option or Stock Purchase Right as to all or any
part of the Optioned Stock, including Shares as to which the Option or Stock
Purchase Right would not otherwise be exercisable.
(c) Merger or Asset Sale. In the event of a merger of the Company with
--------------------
or into another corporation, or the sale of substantially all of the assets of
the Company, each outstanding Option and Stock Purchase Right shall be assumed
or an equivalent option or right substituted by the successor corporation or a
Parent or Subsidiary of the successor corporation. In the event that the
successor corporation refuses to assume or substitute for the Option or Stock
Purchase Right, the Optionee shall have the right to exercise the Option or
Stock Purchase Right as to all of the Optioned Stock, including Shares as to
which it would not otherwise be exercisable. If an Option or Stock Purchase
Right is exercisable in lieu of assumption or substitution in the event of a
merger or sale of assets, the Administrator shall notify the Optionee that the
Option or Stock Purchase Right shall be fully exercisable for a period of
fifteen (15) days from the date of such notice, and the Option or Stock Purchase
Right shall terminate upon the expiration of such period. For the purposes of
this paragraph, the Option or Stock Purchase Right shall be considered assumed
if, following the merger or sale of assets, the option or right confers the
right to purchase or receive, for each Share of Optioned Stock subject to the
Option or Stock Purchase Right immediately prior to the merger or sale of
assets, the consideration (whether stock, cash, or other securities or property)
received in the merger or sale of assets by holders of Common Stock for each
Share held on the effective date of the transaction (and if holders were offered
a choice of
-9-
<PAGE>
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares); provided, however, that if such consideration received
in the merger or sale of assets was not solely common stock of the successor
corporation or its Parent, the Administrator may, with the consent of the
successor corporation, provide for the consideration to be received upon the
exercise of the Option or Stock Purchase Right, for each Share of Optioned Stock
subject to the Option or Stock Purchase Right, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of
assets.
14. Date of Grant. The date of grant of an Option or Stock Purchase Right
-------------
shall be, for all purposes, the date on which the Administrator makes the
determination granting such Option or Stock Purchase Right, or such other later
date as is determined by the Administrator. Notice of the determination shall
be provided to each Optionee within a reasonable time after the date of such
grant.
15. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may at any time amend,
-------------------------
alter, suspend or terminate the Plan.
(b) Shareholder Approval. The Company shall obtain shareholder
--------------------
approval of any Plan amendment to the extent necessary and desirable to comply
with Rule 16b-3 or with Section 422 of the Code (or any successor rule or
statute or other applicable law, rule or regulation, including the requirements
of any exchange or quotation system on which the Common Stock is listed or
quoted). Such shareholder approval, if required, shall be obtained in such a
manner and to such a degree as is required by the applicable law, rule or
regulation.
(c) Effect of Amendment or Termination. No amendment, alteration,
----------------------------------
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
16. Conditions Upon Issuance of Shares.
----------------------------------
(a) Legal Compliance. Shares shall not be issued pursuant to the
----------------
exercise of an Option or Stock Purchase Right unless the exercise of such Option
or Stock Purchase Right and the issuance and delivery of such Shares shall
comply with all relevant provisions of law, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, Applicable Laws, and the requirements of any stock
exchange or quotation system upon which the Shares may then be listed or quoted,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
--------------------------
Option or Stock Purchase Right, the Company may require the person exercising
such Option or Stock Purchase Right to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required.
17. Liability of Company.
--------------------
(a) Inability to Obtain Authority. The inability of the Company to
-----------------------------
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
(b) Grants Exceeding Allotted Shares. If the Optioned Stock covered
--------------------------------
by an Option or Stock Purchase Right exceeds, as of the date of grant, the
number of Shares which may be issued under the Plan without additional
shareholder approval, such Option or Stock Purchase Right shall be void with
respect to such excess
-10-
<PAGE>
Optioned Stock, unless shareholder approval of an amendment sufficiently
increasing the number of Shares subject to the Plan is timely obtained in
accordance with Section 15(b) of the Plan.
18. Reservation of Shares. The Company, during the term of this Plan, will
---------------------
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
19. Stockholder Approval. Continuance of the Plan shall be subject to
--------------------
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such stockholder approval shall be obtained
in the manner and to the degree required under applicable federal and state law.
-11-
<PAGE>
Exhibit 4.2
RAY DREAM, INC.
1992 STOCK OPTION PLAN
Amended by the Board of Directors on May 25, 1994
Approved by the Shareholders on October 5, 1995
Amended by the Board of Directors on May 23, 1995
1. PURPOSE. The Ray Dream, Inc. 1992 Stock Option Plan (the "Plan") is
established to attract, retain and reward persons providing services to Ray
Dream, Inc. and any successor corporation thereto (collectively referred to as
the "Company"), and any present or future parent and/or subsidiary corporations
of such corporation (all of whom along with the Company being individually
referred to as a "Participating Company" and collectively referred to as the
"Participating Company Group"), and to motivate such persons to contribute to
the growth and profits of the Participating Company Group in the future. For
purposes of the Plan, a parent corporation and a subsidiary corporation shall be
as defined in sections 424(e) and 424(f) of the Internal Revenue Code of 1986,
as amended (the "Code").
2. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Company (the "Board") and/or by a duly appointed committee of
the Board having such powers as shall be specified by the Board. Any subsequent
references herein to the Board shall also mean the committee if such committee
has been appointed and, unless the powers of the committee have been
specifically limited, the committee shall have all of the powers of the Board
granted herein, including, without limitation, the power to terminate or amend
the Plan at any time, subject to the terms of the Plan and any applicable
limitations imposed by law. All questions of interpretation of the Plan or of
any options granted under the Plan (an "Option") shall be determined by the
Board, and such determinations shall be final and binding upon all persons
having an interest in the Plan and/or any Option. Options may be either
incentive stock options as defined in section 422 of the Code ("Incentive Stock
Options") or nonqualified stock options. Any officer of a Participating Company
shall have the authority to act on behalf of the Company with respect to any
matter, right, obligation, or election which is the responsibility of or which
is allocated to the Company herein, provided the officer has apparent authority
with respect to such matter, right, obligation, or election.
3. ELIGIBILITY. Options may be granted only to employees (including
officers) and directors of the Participating Company Group or to individuals who
are rendering services as consultants, advisors, or other independent
contractors to the Participating Company Group. The Board shall, in its sole
discretion, determine which persons shall be granted Options (an "Optionee"). A
director of the Company may only be granted a nonqualified stock option unless
the director is also an employee of the Company. An individual who is rendering
services as a consultant, advisor, or other independent contractor may only be
granted a nonqualified stock option. Eligible persons may be granted more than
one (1) Option.
4. SHARES SUBJECT TO OPTION. Options shall be for the purchase of shares
of the authorized but unissued common stock of the Company (the "Stock"),
subject to adjustment as
<PAGE>
provided in paragraph 9 below. The maximum number of shares of Stock which may
be issued under the Plan shall be Five Hundred Six Thousand Two Hundred Eighty
(506,280) shares. In the event that any outstanding Option for any reason
expires or is terminated or canceled and/or shares of Stock subject to
repurchase are repurchased by the Company, the shares allocable to the
unexercised portion of such Option, or such repurchased shares, may again be
subject to an Option grant.
5. TIME FOR GRANTING OPTIONS. All Options shall be granted, if at all,
within ten (10) years from the earlier of the date the Plan is adopted by the
Board or the date the Plan is duly approved by the shareholders of the Company.
6. TERMS, CONDITIONS AND FORM OF OPTIONS. Subject to the provisions of
the Plan, the Board shall determine for each Option (which need not be
identical) the number of shares of Stock for which the Option shall be granted,
the option exercise price of the Option, the timing and terms of exercisability
and vesting of the Option, whether the Option is to be treated as an Incentive
Stock Option or as a nonqualified stock option and all other terms and
conditions of the Option not inconsistent with the Plan. Options granted
pursuant to the Plan shall be evidenced by written agreements specifying the
number of shares of Stock covered thereby, in such form as the Board shall from
time to time establish, which agreements may incorporate all or any of the terms
of the Plan by reference and shall comply with and be subject to the following
terms and conditions:
(a) OPTION EXERCISE PRICE. The option exercise price for each Option
shall be established in the sole discretion of the Board; provided, however,
that (i) the option exercise price per share for an Incentive Stock Option shall
be not less than the fair market value, as determined by the Board, of a share
of Stock on the date of the granting of the Option, (ii) the option exercise
price per share for a nonqualified stock option shall not be less than eighty-
five percent (85 %) of the fair market value, as determined by the Board, of a
share of Stock on the date of the granting of the Option and (iii) no Option
granted to an Optionee who at the time the Option is granted owns stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of a Participating Company within the meaning of section
422(b)(6) of the Code and/or ten percent (10%) of the total combined value of
all classes of stock of a Participating Company (a "Ten Percent Owner Optionee")
shall have an option exercise price per share less than one hundred ten percent
(110%) of the fair market value, as determined by the Board, of a share of Stock
on the date of the granting of the Option. Notwithstanding the foregoing, an
Option (whether an Incentive Stock Option or a nonqualified stock option) may be
granted with an option exercise price lower than the minimum exercise price set
forth above if such Option is granted pursuant to an assumption or substitution
for another option in a manner qualifying with the provisions of section 424(a)
of the Code.
(b) EXERCISE PERIOD OF OPTIONS. The Board shall have the power to set
the time or times within which each Option shall be exercisable or the event or
events upon the occurrence of which all or a portion of each Option shall be
exercisable and the term of each Option; provided, however, that (i) no Option
shall be exercisable after the expiration of ten (10) years after the date such
Option is granted and (ii) no Option granted to a Ten Percent Owner
<PAGE>
Optionee shall be exercisable after the expiration of five (5) years after the
date such Option is granted.
(c) PAYMENT OF OPTION EXERCISE PRICE. Payment of the option exercise
price for the number of shares of Stock being purchased pursuant to any Option
shall be made (i) in cash, by check, or cash equivalent, (ii) by tender to the
Company of shares of the Company's stock owned by the Optionee having a value,
as determined by the Board (but without regard to any restrictions on
transferability applicable to such stock by reason of federal or state
securities laws or agreements with an underwriter for the Company), not less
than the option exercise price, (iii) by the Optionee's recourse promissory
note, (iv) by the assignment of the proceeds of a sale of some or all of the
shares being acquired upon the exercise of the Option (including, without
limitation, through an exercise complying with the provisions of Regulation T as
promulgated from time to time by the Board of Governors of the Federal Reserve
System), or (v) by any combination thereof. The Board may at any time or from
time to time, by adoption of or by amendment to the form of Standard Option
Agreement described in paragraph 7 below, or by other means, grant Options which
do not permit all of the foregoing forms of consideration to be used in payment
of the option exercise price and/or which otherwise restrict one (1) or more
forms of consideration. Notwithstanding the foregoing, an Option may not be
exercised by tender to the Company of shares of the Company's stock to the
extent such tender of stock would constitute a violation of the provisions of
any law, regulation and/or agreement restricting the redemption of the Company's
stock. Furthermore, no promissory note shall be permitted if an exercise using
a promissory note would be a violation of any law. Any permitted promissory
note shall be due and payable not more than five (5) years after the Option is
exercised, and interest shall be payable at least annually and be at least equal
to the minimum interest rate necessary to avoid imputed interest pursuant to all
applicable sections of the Code. The Board shall have the authority to permit
or require the Optionee to secure any promissory note used to exercise an Option
with the shares of Stock acquired on exercise of the Option and/or with other
collateral acceptable to the Company.
(i) Unless otherwise provided by the Board, an Option may not be
exercised by tender to the Company of shares of the Company's stock unless such
shares of the Company's stock either have been owned by the Optionee for more
than six (6) months or were not acquired, timely or indirectly, from the
Company.
(ii) Unless otherwise provided by the Board, in the event the
Company at any time becomes subject to the regulations promulgated by the
Board of Governors of the Federal Reserve System or any other governmental
entity affecting the extension of credit in connection with the Company's
securities, any promissory note shall comply with such applicable regulations,
and the Optionee shall pay the unpaid principal and accrued interest, if any,
to the extent necessary to comply with such applicable regulations.
(iii) The Company reserves, at any and all times, the right, in
the Company's sole and absolute discretion, to establish, decline to approve
and/or terminate any program and/or procedures for the exercise of Options by
means of an assignment of the proceeds of a sale of some or all of the shares
of Stock to be acquired upon such exercise.
<PAGE>
7. STANDARD FORM OF STOCK OPTION AGREEMENT. Unless otherwise provided for
by the Board at the time an Option is granted or as otherwise provided for by
this paragraph 7, all Options shall comply with and be subject to the terms and
conditions set forth in the stock option agreement attached hereto as Exhibit A
and incorporated herein by reference (the "Standard Option Agreement").
(a) MODIFICATIONS FOR NONQUALIFIED STOCK OPTIONS. In the event the
Option is designated as a nonqualified stock option, the Standard Option
Agreement for such Option shall be the Standard Option Agreement as modified as
set forth below unless otherwise specified by the Board:
(i) The title and paragraph 2 of the Standard Option Agreement
shall reflect the Option's status as a nonqualified stock option.
(ii) Paragraph 2 of the Standard Option Agreement shall be
modified to delete therefrom the third sentence referring to whether the
entire option qualifies on an Incentive Stock Option.
(iii) A new paragraph 7(f) shall be added to the Standard Option
Agreement providing that, in the event an Optionee is a director or consultant
or advisor but not an employee of a Participating Company at the time the Option
is granted, termination of the Optionee's status as a director or consultant or
advisor of the Participating Company shall be deemed to be termination of the
Optionee's employment for purposes of the Standard Option Agreement.
(iv) Paragraph 14 of the Standard Option Agreement providing, among
other things, that the Optionee give the Company notice of sales upon
disqualifying dispositions of Incentive Stock Options shall be deleted and shall
not apply to the Option.
(v) Paragraph 16(d) of the Standard Option Agreement regarding the
stock certificate legend applicable to Incentive Stock Options shall be deleted
and shall not apply to the Option.
(vi) Paragraph 19 of the Standard Option Agreement shall be
modified to delete the provision that amendments to the Standard Option
Agreement may be made without the Optionee's consent if such amendments are
required to enable an Option designated as an Incentive Stock Option to
qualify as an Incentive Stock Option.
(vii) The remaining paragraphs of such modified Standard Option
Agreement for nonqualified stock options shall be renumbered accordingly.
(b) STANDARD TERM FOR OPTIONS. Unless otherwise provided for by the
Board in the grant of an Option, any Option granted hereunder shall be
exercisable for a term of ten (10) years.
8. AUTHORITY TO VARY TERMS. The Board shall have the authority from time
to time to vary the terms of the Standard Option Agreement described in
paragraph 7 above either in
<PAGE>
connection with the grant of an individual Option or in connection with the
authorization of a new standard form or forms; provided, however, that the
terms and conditions of such revised or amended standard form or forms of
stock option agreement shall be in accordance with the terms of the Plan. Such
authority shall include, but not by way of limitation, the authority to grant
Options which are immediately exercisable subject to the Company's right to
repurchase any shares of Stock acquired by an Optionee on exercise of an
Option in the event such Optionee's employment with the Participating Company
Group is terminated for any reason, with or without cause.
9. EFFECT OF CHANGE IN STOCK SUBJECT TO PLAN. Appropriate adjustments
shall be made in the number and class of shares of Stock subject to the Plan and
to any outstanding Options and in the option exercise price of any outstanding
Options in the event of a stock dividend, stock split, reverse stock split,
combination, reclassification, or like change in the capital structure of the
Company.
10. TRANSFER OF CONTROL. A "Transfer of Control" shall be deemed to have
occurred in the event any of the following occurs with respect to the Company:
(a) the direct or indirect sale or exchange by the shareholders of the
Company of all or substantially all of the stock of the Company where the
shareholders of the Company before such sale or exchange do not retain, timely
or indirectly, at least a majority of the beneficial interest in the voting
stock of the Company after such sale or exchange;
(b) a merger or consolidation in which the Company is not the
surviving corporation;
(c) a merger or consolidation in which the Company is the surviving
corporation where the shareholders of the Company before such merger or
consolidation do not retain, directly or indirectly, at least a majority of the
beneficial interest in the voting stock of the Company after such merger or
consolidation;
(d) the sale, exchange, or transfer of all or substantially all of the
assets of the Company (other than a sale, exchange, or transfer to one (1) or
more subsidiary corporations (as defined in paragraph 1 above) of the Company);
or
(e) A liquidation or dissolution of the Company.
In the event of a Transfer of Control, the Board, in its sole discretion,
may arrange with the surviving, continuing, successor, or purchasing corporation
or parent corporation thereof, as the case may be (the "Acquiring Corporation"),
for the Acquiring Corporation to either assume the Company's rights and
obligations under outstanding Options or substitute options for the Acquiring
Corporation's stock for such outstanding Options. Any Options which are neither
assumed or substituted for by the Acquiring Corporation in connection with the
Transfer of Control nor exercised as of the date of the Transfer of Control
shall terminate and cease to be outstanding effective as of the date of the
Transfer of Control.
<PAGE>
11. PROVISION OF INFORMATION. Each Optionee and purchaser of shares of
Stock upon the exercise of an Option shall receive, at least annually, copies of
the Company's balance sheet and income statement, or substantially equivalent
financial information for the just completed fiscal year. The Company shall not
be required to deliver such information to persons whose duties in connection
with the Company assure their access to equivalent information.
12. OPTIONS NON-TRANSFERABLE. During the lifetime of the Optionee, the
Option shall be exercisable only by the Optionee. No Option shall be assignable
or transferable by the Optionee, except by will or by the laws of descent and
distribution.
13. TRANSFER OF COMPANY'S RIGHTS. In the event any Participating Company
assigns, other than by operation of law, to a third person, other than another
Participating Company, any of the Participating Company's rights to repurchase
any shares of Stock acquired on the exercise of an Option, the assignee shall
pay to the assigning Participating Company the value of such right as determined
by the Company in the Company's sole discretion. Such consideration shall be
paid in cash. In the event such repurchase right is exercisable at the time of
such assignment, the value of such right shall be not less than the fair market
value of the shares of Stock which may be repurchased under such right (as
determined by the Company) minus the 'repurchase price of such shares. The
requirements of this paragraph 13 regarding the minimum consideration to be
received by the assigning Participating Company shall not inure to the benefit
of the Optionee whose shares of Stock are being repurchased. Failure of a
Participating Company to comply with the provisions of this paragraph 13 shall
not constitute a defense or otherwise prevent the exercise of the repurchase
right by the assignee of such right.
14. TERMINATION OR AMENDMENT OF PLAN. The Board, including any duly
appointed committee of the Board, may terminate or amend the Plan at any time;
provided, however, that without the approval of the Company's shareholders,
there shall be (a) no increase in the total number of shares of Stock covered by
the Plan (except by operation of the provisions of paragraph 9 above), (b) no
change in the class of persons eligible to receive Incentive Stock Options and
(c) no expansion in the class of persons eligible to receive nonqualified stock
options. In any event, no amendment may adversely affect any then outstanding
Option or any unexercised portion thereof, without the consent of the Optionee,
unless such amendment is required to enable an Option designated as an Incentive
Stock Option to qualify as an Incentive Stock Option.
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that
the foregoing Ray Dream, Inc. 1992 Stock Option Plan was duly adopted by the
Board of Directors of the Company on the 19th day of March, 1992; amended by the
Board of Directors on May 25, 1994; and amended by the Board of Directors on May
23, 1995.
/s/ John Stockholm
--------------------------
John Stockholm
<PAGE>
Date:_______________
NONQUALIFIED STOCK OPTION
EXERCISE FORM
Ray Dream, Inc.
1804 N. Shoreline Boulevard
Mountain View, CA 94043
Attention: Chief Financial Officer
Gentlemen:
The undersigned optionee (the "Optionee ") was granted a nonqualified stock
option (the "Option") to purchase shares of the common stock of Ray Dream, Inc.
(the "Company") pursuant to the Company's 1992 Stock Option Plan (the "Plan")
and pursuant to the Nonqualified Stock Option Agreement dated __________, 199__
(the "Option Agreement"). The Optionee hereby elects to exercise the Option as
to __________ shares of the common stock of the Company (the "Shares").
Enclosed herewith is full payment for the Shares in the manner set forth in
the Option Agreement. The Optionee will make adequate provision for foreign,
federal and state tax withholding obligations of the Company, if any, as more
fully set forth in the Option Agreement.
The Optionee represents and warrants that the Optionee is over eighteen
(18) years of age and that the Optionee is purchasing the Shares solely for the
Optionee's own account, and not on behalf of any other person or as a nominee,
for investment and not with a view to, or for sale in connection with, any
distribution of the Shares, other than a sale of the Shares in connection with
the Company's initial public offering of common stock.
The Optionee further represents that the Optionee does not have any present
intention of selling, offering to sell, or otherwise disposing of or
distributing the Shares or any portion thereof, other than a sale of the Shares
in connection with the Company's initial public offering of common stock; and
that the entire legal and beneficial interest in the Shares the Optionee is
purchasing is being purchased for, and will be held for the account of, the
Optionee only and neither in whole nor in part for any other person.
The Optionee acknowledges and understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and that consequently the Shares must be held indefinitely unless they are
subsequently registered under the Securities Act, an exemption from such
registration is available, or they are sold in accordance with Rule 144 or Rule
701. The Optionee further acknowledges and understands that the Company is
under no obligation to register the Shares and that, in the absence of
registration, the Shares may not be transferred. The Optionee understands that
the certificate or certificates evidencing the Shares will be imprinted with
legends which prohibit the transfer of the Shares unless they are registered or
such registration is not required in the opinion of legal counsel satisfactory
to the Company.
<PAGE>
The Optionee does not have any contract, undertaking, agreement, or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person with respect to any of the Shares, other than an
agreement to sell the Shares in connection with the Company's initial public
offering of common stock.
The Optionee is aware that Rule 144, promulgated under the Securities Act,
which permits limited public resale of securities acquired in a nonpublic
offering, is not currently available with respect to the Shares and, in any
event, is available only if certain conditions are satisfied. The Optionee
understands that any sale of the Shares that might be made in reliance upon Rule
144 may only be made in limited amounts in accordance with the terms and
conditions of such rule and that a copy of Rule 144 will be delivered to the
Optionee upon request.
The Optionee agrees that the Shares are being acquired by the Optionee in
accordance with and subject to the terms, provisions and conditions of the
Option Agreement, including the Right of First Refusal set forth therein, to all
of which the Optionee hereby expressly assents. These agreements shall inure to
the benefit of and be binding upon the Optionee's heirs, executors,
administrators, successors and assigns. The Optionee agrees, if so requested,
to deposit the certificate or certificates evidencing the Shares, along with a
blank stock assignment separate from certificate executed by the Optionee, with
an escrow agent designated by the Company, to be held by such escrow agent
pursuant to the Company's standard Joint Escrow Instructions.
The Optionee agrees that the Optionee will promptly notify the Chief Financial
Officer of the Company if the Optionee transfers any of the Shares acquired
pursuant to the Option within one (1) year from the date the Optionee exercises
all or part of the Option or within two (2) years of the date of grant of the
Option.
<PAGE>
The Optionee's address of record is:
_______________________________________
_______________________________________
and the Optionee's Social Security Number is: ______________________________
Very truly yours,
______________________________________________
Print Name: __________________________________
Receipt of the above is
hereby acknowledged.
RAY DREAM, INC.
By:__________________________________
Title:_______________________________
Dated:_______________________________
<PAGE>
Date:_______________
INCENTIVE STOCK OPTION
EXERCISE FORM
Ray Dream, Inc.
1804 N. Shoreline Boulevard
Mountain View, CA 94043
Attention: Chief Financial Officer
Gentlemen:
The undersigned optionee (the "Optionee ,) was granted an incentive stock
option (the "Option") to purchase shares of the common stock of Ray Dream,
Inc. (the "Company") pursuant to the Company' s 1992 Stock Option Plan (the
"Plan") and pursuant to the Incentive Stock Option Agreement dated __________,
199__ (the "Option Agreement"). The Optionee hereby elects to exercise the
Option as to __________ shares of the common stock of the Company (the
"Shares").
Enclosed herewith is full payment for the Shares in the manner set forth
in the Option Agreement. The Optionee will make adequate provision for
foreign, federal and state tax withholding obligations of the Company, if any,
as more fully set forth in the Option Agreement.
The Optionee represents and warrants that the Optionee is over eighteen
(18) years of age and that the Optionee is purchasing the Shares solely for
the Optionee's own account, and not on behalf of any other person or as a
nominee, for investment and not with a view to, or for sale in connection
with, any distribution of the Shares, other than a sale of the Shares in
connection with the Company's initial public offering of common stock.
The Optionee further represents that the Optionee does not have any present
intention of selling, offering to sell, or otherwise disposing of or
distributing the Shares or any portion thereof, other than a sale of the Shares
in connection with the Company's initial public offering of common stock; and
that the entire legal and beneficial interest in the Shares the Optionee is
purchasing is being purchased for, and will be held for the account of, the
Optionee only and neither in whole nor in part for any other person.
The Optionee acknowledges and understands that the Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and that consequently the Shares must be held indefinitely unless they are
subsequently registered under the Securities Act, an exemption from such
registration is available, or they are sold in accordance with Rule 144 or Rule
701. The Optionee further acknowledges and understands that the Company is
under no obligation to register the Shares and that, in the absence of
registration, the Shares may not be transferred. The Optionee understands that
the certificate or certificates evidencing the Shares will be imprinted with
legends which prohibit the transfer of the Shares unless they are registered or
such registration is not required in the opinion of legal counsel satisfactory
to the Company.
<PAGE>
The Optionee does not have any contract, undertaking, agreement, or
arrangement with any person to sell, transfer, or grant participation to such
person or to any third person with respect to any of the Shares, other than an
agreement to sell the Shares in connection with the Company's initial public
offering of common stock.
The Optionee is aware that Rule 144, promulgated under the Securities
Act, which permits limited public resale of securities acquired in a nonpublic
offering, is not currently available with respect to the Shares and, in any
event, is available only if certain conditions are satisfied. The Optionee
understands that any sale of the Shares that might be made in reliance upon
Rule 144 may only be made in limited amounts in accordance with the terms and
conditions of such rule and that a copy of Rule 144 will be delivered to the
Optionee upon request.
The Optionee agrees that the Shares are being acquired by the Optionee in
accordance with and subject to the terms, provisions and conditions of the
Option Agreement, including the Right of First Refusal set forth therein, to all
of which the Optionee hereby expressly assents. These agreements shall inure to
the benefit of and be binding upon the Optionee's heirs, executors,
administrators, successors and assigns. The Optionee agrees, if so requested,
to deposit the certificate or certificates evidencing the Shares, along with a
blank stock assignment separate from certificate executed by the Optionee, with
an escrow agent designated by the Company, to be held by such escrow agent
pursuant to the Company's standard Joint Escrow Instructions.
The Optionee agrees that the Optionee will promptly notify the Chief
Financial Officer of the Company if the Optionee transfers any of the Shares
acquired pursuant to the Option within one (1) year from the date the Optionee
exercises all or part of the Option or within two (2) years of the date of
grant of the Option.
<PAGE>
The Optionee's address of record is:
_____________________________________
_____________________________________
and the Optionee's Social Security Number is:____________________________
Very truly yours,
___________________________________________
Print Name:________________________________
Receipt of the above is
hereby acknowledged.
RAY DREAM, INC.
By:_____________________________
Title:__________________________
Dated:__________________________
<PAGE>
Exhibit 4.3
FRACTAL DESIGN CORPORATION
1993 STOCK OPTION PLAN
(As Amended)
1. PURPOSE.
-------
The Fractal Design Corporation 1993 Stock Option Plan (the "Plan") is
intended to provide to officers, directors, key employees and consultants of the
corporation an opportunity to acquire a proprietary interest in the corporation,
to encourage such key individuals to remain in the employ of or to contract with
the corporation, and to attract and retain new employees, consultants, and
directors with outstanding qualifications. Pursuant to the Plan, the
corporation may grant to officers, directors, consultants, and key employees of
the corporation options to purchase shares of common stock of the corporation
upon such terms and conditions as provided herein.
2. DEFINITIONS.
-----------
(a) "Affiliate" shall mean any corporation (other than the Corporation) in
---------
an unbroken chain of corporations that includes the Corporation if each of such
corporations, other than the last corporation in the chain, owns at least 50% of
the total voting power of one of the other corporations.
(b) "Board" shall mean the Board of Directors of the Corporation.
-----
(c) "Code" shall mean the Internal Revenue Code of 1986.
----
(d) "Committee" shall mean the committee appointed by the Board to
---------
administer the Plan, or if no such committee is appointed, the Board.
(e) "Common Stock" shall mean the voting common stock of the Corporation.
------------
(f) "Consultant" shall mean any person who, or any employee of any firm
----------
which, is engaged by the Company or any Affiliate to render consulting services
and is compensated for such consulting services, and any non-employee director
of the Company whether compensated for such services or not.
(g) "Corporation" shall mean Fractal Design Corporation, a California
-----------
corporation.
(h) "Effective Date" shall mean December 17, 1993.
--------------
(i) "Employee" shall mean any individual who is employed, within the
--------
meaning of Section 3401 of the Code and the regulations thereunder, by the
Corporation or by any Affiliate. For purposes of the Plan and only for purposes
of the Plan, and in regard to Nonstatutory Stock Options but not for Incentive
Stock Options, a Consultant or director of the Corporation or any Affiliate
shall be deemed to be an Employee, and service as a Consultant or director with
the
<PAGE>
Corporation or any Affiliate shall be deemed to be employment, but no
Incentive Stock Option shall be granted to a Consultant or director who is not
an employee of the Corporation or any Affiliate within the meaning of Section
3401 of the Code and the regulations thereunder. In the case of a non-employee
director or Consultant, the provisions governing when a termination of
employment has occurred for purposes of the Plan shall be set forth in the
written stock option agreement between the Optionee and the corporation, or,
if not so set forth, the Committee shall have the discretion to determine when
a termination of "employment" has occurred for purposes of the Plan.
(j) "Escrow Agent" shall mean the person selected by the Corporation, if
------------
any, to hold the stock certificates representing Shares issued in the name of an
Optionee pursuant to such Optionee's exercise of an Option.
(k) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
(l) "Exercise Price" shall mean the price per Share at which an Option may
--------------
be exercised, as determined by the Committee and as specified in the Optionee's
stock option agreement.
(m) "Fair Market Value" shall mean the value of each Share as determined by
-----------------
the Board.
(n) "Incentive Stock Option" shall mean an Option of the type described in
----------------------
Section 422(b) of the Code.
(o) "Joint Escrow Instructions" shall mean joint escrow instructions
-------------------------
entered into between Optionee and the Corporation in such form as may be
approved by the Committee from time to time.
(p) "Nonstatutory Stock Option" shall mean an Option of the type not
-------------------------
described in Section 422(b) or 423(b) of the Code.
(q) "Option" shall mean an option to purchase Common Stock granted pursuant
------
to the Plan.
(r) "Optionee" shall mean any person who holds an Option pursuant to the
--------
Plan.
(s) "Plan" shall mean this stock option plan as it may be amended from time
----
to time.
(t) "Purchase Price" shall mean at any particular time the Exercise Price
--------------
times the number of Shares for which an Option is being exercised.
(u) "Share" shall mean one share of authorized Common Stock.
-------
<PAGE>
3. ADMINISTRATION.
---------------
(a) The Committee.
--------------
(i) The Board may administer the Plan or appoint a Committee to
administer the Plan. The Committee shall consist of not less than two members
who may also be members of the Board. Members of the Board or the Committee who
are either eligible for Options or have been granted Options may vote on any
matters affecting the administration of the Plan or the grant of any Options
pursuant to the Plan, except that no such member shall act upon the granting of
an Option to himself or herself, but any such member may be counted in
determining the existence of a quorum at any meeting of the Committee and shall
be excluded in determining unanimity of an act in writing, for any action which
is taken with respect to the granting of an Option to such member.
(ii) If the Corporation registers any class of any equity security
pursuant to Section 12 of the Exchange Act from the effective date of such
registration until six months after the termination of such registration, the
Plan shall be administered by a Committee of directors which shall consist of
not less than two members, who during the one year prior to service as an
administrator of the Plan, shall not have been granted or awarded equity
securities pursuant to the Plan or any other plan of the Corporation or any of
its Affiliates except as permitted under Rule 16b-3 under the Exchange Act which
provides that participation in a formula plan meeting the conditions of Rule
16(b)(3)(c)(2)(ii) or in an ongoing securities acquisition plan meeting the
conditions in Rule 16(b)(3)(d)(2)(i) shall not disqualify a member of the
Committee from serving as an administrator of the Plan. In addition, an
election to receive an annual retainer fee in either cash or an equivalent
amount of securities, or partly in cash and partly in securities, shall not
disqualify a member of the Committee from serving as an administrator of the
Plan.
The Board may from time to time designate individuals as ineligible to
participate in the Plan for a specified period in order to become eligible to be
a member of the Committee.
(b) Powers of the Committee.
------------------------
Subject to the provisions of the Plan, the Committee shall have the
authority, in its discretion and on behalf of the Corporation:
(i) to grant Options;
(ii) to determine the Exercise Price per Share of Options to be
granted;
(iii) to determine the Employees to whom, and the time or times at
which, Options shall be granted and the number of Shares for which an Option
will be exercisable;
(iv) to interpret the Plan;
(v) to prescribe, amend, and rescind rules and regulations relating
to the Plan;
<PAGE>
(vi) to determine the terms and provisions of each Option granted and,
with the consent of the holder thereof, modify or amend each Option;
(vii) to authorize any person to execute on behalf of the Corporation
any instrument required to effectuate the grant of an Option previously granted
by the Committee;
(viii) with the consent of the Optionee, to reprice, cancel and
regrant, or otherwise adjust the Exercise Price of an Option previously granted
by the Committee; and
(ix) to make all other determinations deemed necessary or advisable
for the administration of the Plan.
(c) Board's Determination of Fair Market Value.
The Board shall have the authority to determine, upon review of relevant
information, the Fair Market Value of the Common Stock, subject to the
provisions of the Plan and irrespective of whether the Board has appointed a
Committee to administer the Plan. The Board may delegate this authority to the
Committee.
(d) Committee's Interpretation of the Plan. The interpretation and
construction by the Committee of any provision of the Plan or of any Option
granted hereunder shall be final and binding on all parties claiming an interest
in an Option granted under the Plan. No member of the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any Option.
(e) All Committee Actions to be in writing. Any and all actions of the
Committee taken in exercise of the powers granted to it in this Section 3 shall
be in writing.
4. PARTICIPATION.
-------------
(a) Eligibility.
-----------
The Optionees shall be such persons as the Committee may select from among
the Employees, provided that Consultants are not eligible to receive Incentive
Stock Options.
(b) Ten Percent Shareholders.
------------------------
Any Employee who owns Stock possessing more than 10% of the total combined
voting power of all classes of outstanding stock of the Corporation or any
Affiliate shall not be eligible to receive an Option unless:
(i) the Exercise Price of the Shares subject to such Option when
granted is at least 110% of the Fair Market Value of such Shares, and
(ii) such Option by its terms is not exercisable after the expiration
of five years from the date of grant.
<PAGE>
(c) Stock Ownership.
---------------
For purposes of Paragraph 4(b), in determining stock ownership, an Employee
shall be considered as owning the stock owned, directly or indirectly, by or for
his or her brothers and sisters, spouse, ancestors, and lineal descendants.
Stock owned, directly or indirectly, by or for a corporation, partnership,
estate, or trust shall be considered as being owned proportionately by or for
its shareholders, partners, or beneficiaries, respectively. Stock with respect
to which such Employee or any other person holds an option shall be disregarded.
(d) Outstanding Stock. For purposes of Section 4 (b), the term
-----------------
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant of the Option to the Optionee but shall not
include any share for which an Option is exercisable by any person.
5. STOCK.
-----
(a) Shares Subject to This Plan.
---------------------------
The aggregate number of Shares which may be issued upon exercise of Options
under the Plan shall not exceed 2,000,000 subject to adjustment pursuant to
Section 9 hereof; provided however, that the foregoing reflects the 20-1 stock
split approved by the Board of Directors of the Corporation in December, 1993.
(b) Options Not to Exceed Shares Available.
--------------------------------------
The number of Shares for which an Option is exercisable at any time shall
not exceed the number of Shares remaining available for issuance under the
Plan. If any Option expires or is terminated, the number of Shares for which
such Option was exercisable may be made exercisable pursuant to other Options
under the Plan. If the Corporation reacquires any Shares pursuant to Sections
11 or 12, hereof, such Shares may again be made exercisable pursuant to an
Option. The limitations established by this Section 5(b) shall be subject to
adjustment in the manner provided in Section 9 hereof upon the occurrence of
an event specified therein.
6. TERMS AND CONDITIONS OF OPTIONS.
-------------------------------
(a) Stock Option Agreements.
-----------------------
Options shall be evidenced by written stock option agreements between the
Optionee and the Corporation in such form as the Committee shall from time to
time determine. No Option or purported Option shall be a valid and binding
obligation of the Corporation unless so evidenced in writing.
<PAGE>
(b) Number of Shares.
----------------
Each stock option agreement shall state the number of Shares for which
the Option is exercisable and shall provide for the adjustment thereof in
accordance with Section 9 hereof.
(c) Vesting.
-------
An Optionee may not exercise his or her Option for any Shares until
the Option, in regard to such Shares, has vested. Each stock option agreement
shall include a vesting schedule which shall show when the Option becomes
exercisable provided, each Option shall vest at a rate of at least twenty
percent (20%) per year over a period of five (5) years. The vesting schedule
shall not impose upon the Corporation or any Affiliate any obligation to retain
the Optionee in its employ or under contract for any period or otherwise change
the employment-at-will status of an Optionee who is an employee of the
Corporation or any Affiliate.
(d) Lapse of Options.
----------------
Each stock option agreement shall state the time or times when the
Option covered thereby lapses and becomes unexercisable in part or in full. An
Option shall lapse on the earliest of the following events (unless otherwise
determined by the Committee and reflected in an option agreement):
(i) The tenth anniversary of the date of granting the Option;
(ii) The first anniversary of the Optionee's death;
(iii) The first anniversary of the date the Optionee ceases to be an
Employee due to disability;
(iv) On the date provided in Section 6(h)(i), unless with respect to
a Nonstatutory Stock Option, the Committee otherwise extends such period before
the applicable expiration date;
(v) On the date provided in Section 9 for a transaction described in
such Section; or
(vii) The expiration date specified in an Optionee's stock option
agreement.
<PAGE>
(e) Exercise Price.
--------------
Each stock option agreement shall state the Exercise Price for the Shares
for which the Option is exercisable. Subject to Section 4(b), the Exercise
Price of an Incentive Stock Option and a Nonstatutory Stock Option shall, when
granted, be not less than 100% and 85% of the Fair Market Value of the Shares
for which the Option is exercisable, respectively, and not less than the par
value of the Shares.
(f) Medium and Time of Payment.
--------------------------
The Purchase Price shall be payable in full in cash upon the exercise of an
Option but the Committee may allow the Optionee to pay the Purchase Price:
(i) by surrendering Shares in good form for transfer, owned by the
Optionee and having a Fair Market Value on the date of exercise equal to the
Purchase Price;
(ii) by delivery of a full recourse promissory note ("Note") made by
the Optionee in the amount of the Purchase Price, bearing interest, compounded
semiannually, at a rate not less than the rate determined under Section 7872
of the Code to insure that no "foregone interest", as defined in such section,
will accrue, together with the delivery of a duly executed standard form
security agreement securing the Note by a pledge of the Shares purchased; or
(iii) in any combination of such consideration or such other
consideration and method of payment for the issuance of Shares to the extent
permitted under applicable law Code as long as the sum of the cash so paid,
the Fair Market Value of the Shares so surrendered, and the amount of any Note
equals the Purchase Price.
The Committee or a stock option agreement may prescribe requirements with
respect to the exercise of Options, including the submission by the Optionee of
such forms and documents as the Committee may require and, the delivery by the
Optionee of cash sufficient to satisfy applicable withholding requirements. The
Committee may vary the exercise requirements and procedures from time to time to
facilitate, for example, the broker-assisted exercise of Options.
(g) Nontransferability of Options.
-----------------------------
During the lifetime of the Optionee, the Option shall be exercisable only
by the Optionee or the Optionee's conservator or legal representative and
shall not be assignable or transferable except pursuant to a qualified
domestic relations order as defined by the Code. In the event of the
Optionee's death, the Option shall not be transferable by the Optionee other
than by will or the laws of descent and distribution.
(h) Termination of Employment Other than by Death or Disability.
-----------------------------------------------------------
(i) If an Optionee ceases to be an Employee for any reason other
than his or her death or disability, the Optionee shall have the right,
subject to the provisions of this Section 6, to exercise any Option held by
the Optionee at any time within thirty (30) days (or such other period
provided in Optionee's Option Agreement) after his or her termination of
<PAGE>
employment, but not beyond the otherwise applicable term of the Option and
only to the extent that on such date of termination of employment the
Optionee's right to exercise such Option had vested.
(ii) For purposes of this Section 6(h), the employment relationship
shall be treated as continuing intact while the Optionee is an active employee
of the Corporation or any Affiliate, or is on military leave, sick leave, or
other bona fide leave of absence to be determined in the sole discretion of
the Committee. The preceding sentence notwithstanding, in the case of an
Incentive Stock Option, employment shall be deemed to terminate on the date
the Optionee ceases active employment with the Corporation or any Affiliate,
unless the Optionee's reemployment rights are guaranteed by statute or
contract.
(i) Death of Optionee.
-----------------
If an Optionee dies while an Employee, or after ceasing to be an Employee
but during the period while he or she could have exercised an Option under
Section 6(h), any Option granted to the Optionee may be exercised, to the
extent it had vested at the time of death and subject to the Plan, at any time
within 12 months after the Optionee's death, by the executors or
administrators of his or her estate or by any person or persons who acquire
the Option by will or the laws of descent and distribution, but not beyond the
otherwise applicable term of the Option.
(j) Disability of Optionee.
----------------------
If an Optionee ceases to be an Employee due to becoming disabled, any
Option granted to the Optionee may be exercised to the extent it had vested at
the time of cessation and, subject to the Plan, at any time within 12 months
after the Optionee's termination of employment, but not beyond the otherwise
applicable term of the Option.
(k) Rights as a Shareholder.
-----------------------
An Optionee, or a transferee of an Optionee, shall have no rights as a
shareholder of the Corporation with respect to any Shares for which his or her
Option is exercisable until the date of the issuance of a stock certificate for
such Shares. No adjustment shall be made for dividends, ordinary or
extraordinary or whether in currency, securities, or other property,
distributions, or other rights for which the record date is prior to the date
such stock certificate is issued, except as provided in Section 9 hereof.
(l) Modification, Extension, and Renewal of Options.
-----------------------------------------------
Within the limitations of the Plan, the Committee may modify, extend or
renew outstanding Options or accept the cancellation of outstanding Options
for the granting of new Options in substitution therefor. Notwithstanding the
preceding sentence, no modification of an Option shall, without the consent of
the Optionee, alter or impair any rights or obligations under any Option
previously granted.
<PAGE>
(m) Other Provisions.
----------------
The stock option agreements authorized under the Plan may contain such
other provisions which are not inconsistent with the terms of the Plan,
including, without limitation, restrictions upon the exercise of the Option,
as the Committee shall deem advisable.
7. $100,000 PER YEAR LIMITATION ON VESTING OF ISOs.
-----------------------------------------------
To the extent that the Fair Market Value of Shares (determined for each
Share as of the date of grant of the Option covering such Share) subject to
Options granted under this Plan (or any other plan of the Corporation or any
Affiliate) which are designated as Incentive Stock Options and which become
exercisable by an Optionee for the first time during a single calendar year
exceeds $100,000, the Option(s) (or portion thereof) covering such Shares
shall be recharacterized (to the extent of such excess over $100,000) as a
Nonstatutory Stock Option. In determining which Option(s) shall be treated as
Nonstatutory Stock Options under the preceding sentence, the Options shall be
taken into account in the order granted, with the result that a later granted
Option shall be recharacterized as a Nonstatutory Stock Option prior to such
recharacterization of a previously granted Option.
8. TERM OF PLAN.
------------
Options may be granted pursuant to the Plan until ten years following the
Effective Date, and all Options which are outstanding on such date shall remain
in effect until they are exercised or expire by their terms. The Plan shall
expire for all purposes on the date 20 years following the Effective Date.
9. RECAPITALIZATION, TAKEOVERS, AND LIQUIDATIONS.
---------------------------------------------
(a) Reorganizations.
---------------
The number of Shares covered by the Plan, as provided in Section 5
hereof, and the number of Shares for which each Option is exercisable shall be
proportionately adjusted for any increase or decrease in the number of issued
Shares resulting from the payment of a Common Stock dividend, a stock split, a
reverse stock split or any other event which results in an increase or
decrease in the number of issued Shares effected without receipt of
consideration by the Corporation, and the Exercise Price shall be
proportionately increased in the event the number of Shares subject to such
Option are decreased and shall be proportionately decreased in the event the
number of Shares subject to such Option are increased. For the purposes of
this paragraph, conversion of any convertible securities of the Corporation
shall not be deemed to have been "effected without receipt of consideration."
Adjustments shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issuance by the Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Option.
<PAGE>
(b) Liquidation.
-----------
In the event of the dissolution or liquidation of the Corporation, each
Option shall terminate immediately prior to the consummation of such action.
The Committee shall notify the Optionee not less than fifteen (15) days prior
to the proposed consummation of a pending dissolution or liquidation, and the
Option shall be exercisable as to all Shares which are vested prior to
expiration until immediately prior to the consummation of such action.
(c) Merger.
------
In the event of (i) a proposed merger of the Corporation with or into
another corporation, as a result of which the Corporation is not the surviving
corporation and (ii) the Option is not assumed or an equivalent option
substituted by the successor corporation or a parent or subsidiary of the
successor corporation, then in such case each Option shall terminate
immediately prior to the consummation of such transaction. The Committee shall
notify the Optionee not less than fifteen (15) days prior to the proposed
consummation of such transaction, and the Option shall be exercisable as to
all Shares which are vested prior to expiration and until immediately prior to
the consummation of such transaction.
(d) Determination by Committee.
--------------------------
All adjustments described in this Section 9 shall be made by the Committee,
whose determination shall be conclusive and binding on all persons.
(e) Limitation on Rights of Optionee.
--------------------------------
Except as expressly provided in this Section 9, no Optionee shall have any
rights by reason of any payment of any stock dividend, stock split or reverse
stock split or any other increase or decrease in the number of shares of stock
of any class, or by reason of any reorganization, consolidation, dissolution,
liquidation, merger, exchange, split-up or reverse split-up, or spin-off of
assets or stock of another corporation. Any issuance by the Corporation of
Shares, Options or securities convertible into Shares or Options shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number or Exercise Price of the Shares for which an Option is exercisable.
Notwithstanding the foregoing, if the Corporation shall enter into a transaction
affecting the Corporation's capital stock or distributions to the holders of its
capital stock for which a revision in the terms of each Option is not required
pursuant to this Section 9, the Committee shall have the right, but not the
obligation, to revise the terms of each Option in a manner the Committee, in its
sole discretion, deems fair and reasonable given the transaction involved.
<PAGE>
(f) No Restriction on Rights of Corporation.
---------------------------------------
The grant of an Option shall not affect or restrict in any way the right or
power of the Corporation to make adjustments, reclassifications,
reorganizations, or changes of its capital or business structure, or to merge or
consolidate, or to dissolve, liquidate, sell, or transfer all or any part of its
business or assets.
10. SECURITIES LAW REQUIREMENTS.
---------------------------
(a) Legality of Issuance.
--------------------
No Share shall be issued upon the exercise of any Option unless and until
the Corporation has determined that:
(i) The Corporation and the Optionee have taken all actions required
to exempt the issuance of the Shares from the registration requirements under
the Securities Act of 1933, as amended (the "Act"), or the Corporation and the
Optionee shall determine that the registration requirements of the Act do not
apply to such exercise;
(ii) Any applicable listing requirement of any stock exchange on
which the Common Stock is listed has been satisfied; and
(iii) Any other applicable provision of state or Federal law has been
satisfied.
(b) Restrictions on Transfer; Representations of Optionee; Legends.
--------------------------------------------------------------
Regardless of whether the offering and sale of Shares has been registered
under the Act or has been registered or qualified under the securities laws of
any state, the Corporation may impose restrictions upon the sale, pledge, or
other transfer of such Shares, including the placement of appropriate legends
on stock certificates, if, in the judgment of the Corporation and its counsel,
such restrictions are necessary or desirable in order to achieve compliance
with the provisions of the Act, the securities laws of any state, or any other
law. If the sale of Shares is not registered under the Act and the Corporation
shall determine that the registration requirements of the Act apply to such
sale, but an exemption is available which requires an investment
representation or other representation, the Optionee shall be required, as a
condition to purchasing Shares by exercise of his or her Option, to represent
that such Shares are being acquired for investment, and not with a view to the
sale or distribution thereof, except in compliance with the Act, and to make
such other representations as are deemed necessary or appropriate by the
Corporation and its counsel. Stock certificates evidencing Shares acquired
pursuant to an unregistered transaction to which the Act applies shall bear a
restrictive legend
<PAGE>
substantially in the following form and such other restrictive legends as are
required or deemed advisable under the Plan or the provisions of any applicable
law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE. THESE SHARES HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION THEREOF, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
UNDER THE ACT AND/OR QUALIFICATION UNDER ANY APPLICABLE STATE SECURITIES
LAWS, OR WITHOUT AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION AND
ITS COUNSEL THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED."
The Corporation shall also place legends on stock certificates representing its
right of repurchase under Section 11 hereof and the right of first refusal under
Section 12 hereof. Any determination by the Corporation and its counsel in
connection with any of the matters set forth in this Section 10 shall be
conclusive and binding on all persons.
(c) Registration or Qualification of Securities.
-------------------------------------------
The Corporation may, but shall not be obligated to, register or qualify
the sale of Shares under the Act or any other applicable law. In connection
with any such registration or qualification, the Corporation shall provide
each Optionee with such information required pursuant to all applicable laws
and regulations.
(d) Exchange of Certificates.
------------------------
If, in the opinion of the Corporation and its counsel, any legend placed
on a stock certificate representing Shares sold hereunder is no longer
required, the Optionee or the holder of such certificate shall be entitled to
exchange such certificate for a certificate representing the same number of
Shares but lacking such legend.
11. RIGHT OF REPURCHASE.
-------------------
(a) Repurchase Right.
----------------
At the Committee's discretion, Shares issued pursuant to the exercise of an
Option may be subject to a right, but not an obligation, of repurchase by the
Corporation (the "Right of Repurchase"), at the price specified in Section
11(b), if the Optionee ceases to be an Employee for any reason ("Employment
Termination") at any time after the grant of the Option pursuant to which such
Shares were issued. Shares issued by the Corporation shall only be transferable
by the Optionee subject to the Right of Repurchase, and the Corporation shall
legend the Right of Repurchase on the stock certificates evidencing such Shares
and shall take such other steps as it
<PAGE>
deems necessary to ensure compliance with this restriction. The Corporation's
rights under this Section II(a) shall be freely assignable, in whole or in
part.
(b) Repurchase Price.
----------------
The price per Share at which the Corporation may exercise the Right of
Repurchase under Section 11(a) (the "Repurchase Price") shall be the higher of
the Exercise Price of each Share as paid by the Optionee, or Fair Market Value
of the Shares on the date the Corporation sends the notice to the Optionee of
its exercise of its Right of Repurchase pursuant to Section 11(a).
(c) Repurchase Procedure.
--------------------
The Corporation may exercise its Right of Repurchase by sending a written
notice to the Optionee and to the Escrow Agent, if any, of its taking such
action. The Corporation's Right of Repurchase shall terminate if not exercised
by written notice from the Corporation to the Optionee within ninety (90) days
of the date on which the Corporation learns of the Employment Termination or
the last date any Option granted to such Optionee is exercised, which ever is
later. If the Corporation exercises its Right of Repurchase, the Optionee, or
if applicable, the Escrow Agent, shall deliver to the Corporation every stock
certificate representing the Shares being repurchased, together with
appropriate Assignments Separate from Certificates, and the Corporation shall
then promptly pay the total Repurchase Price in cash to the Optionee, or if
applicable, to the Escrow Agent, for delivery to the Optionee.
(d) Election to Defer Purchase of Incentive Stock Option Shares.
-----------------------------------------------------------
(i) Notwithstanding the preceding provisions of this Section 11, an
Optionee whose Shares were issued pursuant to an Incentive Stock Option may
elect to defer the Corporation's repurchase of such Shares pursuant to this
Section 11 until the holding period requirements of Section 422(a) of the Code
are met. Such election shall be in writing in such form as the Committee may
require and shall be delivered to the Corporation and to the Escrow Agent by
certified mail no later than seven (7) days after the date on which the
Optionee receives notice that the Corporation elects to exercise its Right of
Repurchase. Such election shall pertain to all such Shares issued to the
Optionee and shall be irrevocable.
(ii) With respect to an Optionee who makes the election described in
subsection 11(d)(i), the Corporation shall repurchase such Shares on or before
the date which is ninety (90) days following the earlier of the date on which
the Optionee dies or the date on which the holding period requirements of
Section 422(a) of the Code are met. The Repurchase Price of each such Share
determined under Section 11(b) shall be calculated by substituting for the
Optionee's Employment Termination date the earlier of the date on which the
Optionee dies or the date on which such holding period requirements are met.
<PAGE>
(e) Escrow.
------
To facilitate the consummation of the Corporation's Right of Repurchase
under this Section 11, at the request of the Committee, the Optionee and the
Corporation shall execute Joint Escrow Instructions and the Optionee shall
deliver and deposit with the Escrow Agent named in the Joint Escrow
Instructions two "Assignments Separate from Certificate", together with all
certificates evidencing the Shares of Common Stock issued to the Optionee
pursuant to the Plan, duly endorsed in blank. The Escrow Agent shall hold such
documents and deliver the same to the Corporation pursuant to the Joint Escrow
Instructions and in accordance with the terms of this Section 11, as
applicable
(f) Binding Effect.
--------------
The Corporation's Right of Repurchase shall inure to the benefit of its
successors and assigns and shall be binding upon any representative, executor,
administrator, heir, or legatee of the Optionee.
(g) Payment of Net Amount Owing.
---------------------------
Notwithstanding anything to the contrary contained herein, if the
Corporation determines to exercise its rights of repurchase pursuant to this
Section before any Shares have been issued as a result of an exercise of an
Option, in lieu of issuing any Shares, the Corporation shall have the right,
but not the obligation, to pay to the Optionee the net amount owing to the
Optionee.
(h) Termination or Right of Repurchase.
----------------------------------
Notwithstanding any other provision of this Section 11, in the event that
the Common Stock is listed on any United States securities exchange or traded
on any formal over-the-counter market in general use in the United States at
the time the Optionee would otherwise be required to transfer his or her
Shares, the Corporation shall no longer have the Right of Repurchase, and the
Optionee shall have no obligation to comply with this Section 11.
12. RIGHT OF FIRST REFUSAL.
----------------------
(a) Right of First Refusal.
----------------------
At the Committee's discretion, shares issued pursuant to the exercise of an
Option may be subject to a requirement that if an Optionee proposes to sell,
pledge, or otherwise transfer any Shares acquired pursuant to exercise of an
Option, or any interest in such Shares, to any person or entity, the Corporation
shall have a right of first refusal (the "Right of First Refusal") with respect
to such Shares. Any Optionee desiring to transfer Shares subject to the Right
of First Refusal shall give a written notice (the "Transfer Notice") to the
Corporation describing fully the proposed transfer, including the number of
Shares proposed to be transferred, the proposed transfer price, and the name and
address of the proposed transferee. The Transfer Notice shall be signed both by
the Optionee and by the proposed transferee and must constitute a binding
commitment of both parties to the transfer of the Shares. The Corporation shall
have the right to purchase the Shares subject to the Transfer Notice on the
terms of the proposal referred to in the
<PAGE>
Transfer Notice, subject to any change in such terms permitted under Section
12(b) hereof, by delivery of a notice of exercise of the Right of First
Refusal within 30 days after the date the Transfer Notice is received by the
Corporation. The Corporation's rights under this Section 12(a) shall be freely
assignable, in whole or in part.
(b) Transfer of Shares.
------------------
If the Corporation fails to exercise the Right of First Refusal within 30
days after the date on which it receives the Transfer Notice, the Optionee
may, not later than six months following receipt of the Transfer Notice by the
Corporation, consummate a transfer of the Shares subject to the Transfer
Notice on the terms and conditions described in the Transfer Notice. Any
proposed transfer on terms and conditions different from those described in
the Transfer Notice, as well as any subsequent proposed transfer by the
Optionee, shall again be subject to the Right of First Refusal and shall again
require compliance with the procedure described in Section 12(a). If the
Corporation exercises its Right of First Refusal, the Optionee shall
immediately endorse and deliver to the Corporation every stock certificate
representing the Shares being purchased, and the Corporation shall then
promptly pay the purchase price in accordance with the terms set forth in the
Transfer Notice.
(c) Repurchase Payment.
------------------
The amount payable to an Optionee pursuant to the Corporation's exercise
of the Right of First Refusal shall be paid to the Optionee in accordance with
the terms and conditions of the Transfer Notice or may, at the election of the
Corporation, be paid in full in cash.
(d) Binding Effect. The Corporation's Right of First Refusal shall inure
--------------
to the benefit of its successors and assigns and shall be binding upon any
transferee of the Shares, other than a transferee acquiring Shares in a
transaction with respect to which the Corporation failed to exercise its Right
of First Refusal (a "Free Transferee") or a transferee of a Free Transferee.
(e) Termination of Right of First Refusal.
-------------------------------------
Notwithstanding any other provision of this Section 12, if the Common
Stock is listed on any United States securities exchange or traded on any
formal over-the-counter market in general use in the United States at the time
the Optionee desires to transfer his or her Shares, the Corporation shall no
longer have the Right of First Refusal, and the Optionee shall have no
obligation to comply with this Section 12.
13. EXERCISE OF UNVESTED OPTIONS.
----------------------------
The Committee may grant any Optionee the right to exercise any Option
prior to the complete vesting of such Option. Without limiting the generality
of the foregoing, the Committee may provide that if an Option is exercised
prior to having completely vested, the Shares issued upon such exercise shall
remain subject to vesting at the same rate as under the Option so exercised
and shall be subject to a right, but not an obligation, of repurchase by the
Corporation with respect to all unvested Shares if the Optionee ceases to be
an Employee for any reason. For the purposes of facilitating the enforcement
of any such right of repurchase, at the request of the
<PAGE>
Committee, the Optionee shall enter into the Joint Escrow Instructions with
the Corporation and deliver every certificate for his or her unvested Shares
with a stock power executed in blank by the Optionee and by the Optionee's
spouse, if required for transfer.
14. AMENDMENT OF THE PLAN.
---------------------
The Board or the Committee may, from time to time, terminate, suspend or
discontinue the Plan, in whole or in part, or revise or amend it in any respect
whatsoever including, but not limited to, the adoption of any amendment(s)
deemed necessary or advisable to qualify the Options under rules and regulations
promulgated by the Securities and Exchange Commission with respect to Employees
who are subject to the provisions of Section 16 of the Securities Exchange Act
of 1934, as amended, or to correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any Option granted thereunder,
without approval of the shareholders of the Corporation, but without the
approval of the Corporation's shareholders, no such revision or amendment shall:
(i) Increase the number of Shares subject to the Plan, other than any
increase pursuant to Section 9;
(ii) Materially modify the requirements as to eligibility for
participation in the Plan;
(iii) Materially increase the benefits accruing to Optionees under the
Plan;
(iv) Extend the term of the Plan; or
(v) Amend this Section 14 to defeat its purpose.
No amendment, termination or modification of the Plan shall affect any Option
theretofore granted in any material adverse way without the consent of the
Optionee.
15. APPLICATION OF FUNDS.
--------------------
The proceeds received by the Corporation from the sale of Common Stock
pursuant to the exercise of an Option shall be used for general corporate
purposes.
16. APPROVAL OF SHAREHOLDERS.
------------------------
The Plan shall be subject to approval by the affirmative vote of the
holders of a majority of all classes of the outstanding shares present and
entitled to vote at the first meeting of shareholders of the Corporation
following the adoption of the Plan or by written consent, and in no event
later than one (1) year following the Effective Date. Prior to such approval,
Options may be granted but shall not be exercisable. Any amendment described
in Section 14 (i) to (iv) shall also be subject to approval by the
Corporation's shareholders.
<PAGE>
17. WITHHOLDING OF TAXES.
--------------------
In the event the Corporation or a Affiliate determines that it is
required to withhold Federal, state, or local taxes in connection with the
exercise of an Option or the disposition of Shares issued pursuant to the
exercise of an Option, the Optionee or any person succeeding to the rights of
the Optionee, as a condition to such exercise or disposition, may be required
to make arrangements satisfactory to the Corporation or the Affiliate to
enable it to satisfy such withholding requirements.
18. RIGHTS AS AN EMPLOYEE.
---------------------
Neither the Plan nor any Option granted pursuant thereto shall be
construed to give any person the right to remain in the employ of the
Corporation or any Affiliate, or to affect the right of the Corporation or any
Affiliate to terminate such individual's employment at any time with or
without cause. The grant of an Option shall not entitle the Optionee to, or
disqualify the Optionee from, participation in the grant of any other Option
under the Plan or participation in any other benefit plan maintained by the
Corporation or any Affiliate.
19. DISAVOWAL OF REPRESENTATIONS. UNDERTAKINGS OR CREATION OF IMPLIED RIGHTS.
------------------------------------------------------------------------
In adopting and maintaining this Plan and granting options hereunder,
neither the Corporation nor any Affiliate makes any representations or
undertakings with respect to the initial qualification or treatment of Options
under federal or state tax or securities laws. The Corporation and each
Affiliate expressly disavows the creation of any rights in Employees,
Optionees, or beneficiaries of any obligations on the part of the Corporation,
any Affiliate or the Committee, except as expressly provided herein.
20. INSPECTION OF RECORDS.
---------------------
Copies of the Plan, records reflecting each Optionee's Option, and any
other documents and records which an Optionee is entitled by law to inspect
shall be open to inspection by the Optionee and his or her duly authorized
representative at the office of the Committee at any reasonable business hour.
21. INFORMATION TO OPTIONEES.
------------------------
The Company shall provide financial information at least annually to each
Optionee, during the period such Optionee has one or more Options outstanding.
The Company shall not be required to provide such information if the issuance of
Options or Stock Purchase Rights under the Plan is limited to key employees
whose duties in connection with the Company assure their access to equivalent
information.
<PAGE>
Exhibit 4.4
FRACTAL DESIGN CORPORATION
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
--------------------
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants
of the Company and to promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock Options (as
defined under Section 422 of the Code) or Nonstatutory Stock Options, at the
discretion of the Board and as reflected in the terms of the written option
agreement.
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Administrator" shall mean the Board or any of its Committees
-------------
appointed pursuant to Section 4 of the Plan.
(b) "Affiliate" shall mean an entity in which the Company owns an
---------
equity interest.
(c) "Applicable Laws" shall have the meaning set forth in Section
---------------
4(a) below.
(d) "Board" shall mean the Board of Directors of the Company.
-----
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(f) "Committee" shall mean the Committee appointed by the Board of
---------
Directors in accordance with Section 4(a) of the Plan, if one is appointed.
(g) "Common Stock" shall mean the Common Stock of the Company.
------------
(h) "Company" shall mean Fractal Design Corporation, a Delaware
-------
corporation.
(i) "Consultant" shall mean any person who is engaged by the Company
----------
or any Parent, Subsidiary or Affiliate to render consulting services and is
compensated for such consulting services, and any director of the Company
whether compensated for such services or not; provided that if and in the event
the Company registers any class of any equity security pursuant to Section 12 of
the Exchange Act, the term Consultant shall thereafter not include directors who
are not compensated for their services or are paid only a director's fee by the
Company.
<PAGE>
(j) "Continuous Status as an Employee or Consultant" shall mean the
----------------------------------------------
absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Administrator; provided that such leave is for
a period of not more than 90 days or reemployment upon the expiration of such
leave is guaranteed by contract or statute. For purposes of this Plan, a change
in status from an Employee to a Consultant or from a Consultant to an Employee
will not constitute a termination of employment.
(k) "Director" shall mean a member of the Board.
--------
(l) "Employee" shall mean any person, including Named Executives,
--------
Officers and Directors employed by the Company or any Parent, Subsidiary or
Affiliate of the Company. The payment by the Company of a director's fee to a
Director shall not be sufficient to constitute "employment" of such Director by
the Company.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934,
------------
as amended.
(n) "Fair Market Value" means, as of any date, the value of Common
-----------------
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system including without limitation the National
Market of the National Association of Securities Dealers, Inc. Automated
Quotation ("Nasdaq") System, its Fair Market Value shall be the closing sales
price for such stock as quoted on such system on the date of determination (if
for a given day no sales were reported, the closing bid on that day shall be
used), as such price is reported in The Wall Street Journal or such other
-----------------------
source as the Administrator deems reliable;
(ii) If the Common Stock is quoted on the Nasdaq System (but
not on the National Market thereof) or regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market Value
shall be the mean between the bid and asked prices for the Common Stock or;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith by the
Administrator.
(o) "Incentive Stock Option" shall mean an Option intended to
----------------------
qualify as an incentive stock option within the meaning of Section 422 of the
Code, as designated in the applicable written option agreement.
(p) "Named Executive" shall mean any individual who, on the last day
---------------
of the Company's fiscal year, is the chief executive officer of the Company (or
is acting in such capacity) or among the four highest compensated officers of
the Company (other than the chief executive
<PAGE>
officer). Such officer status shall be determined pursuant to the executive
compensation disclosure rules under the Exchange Act.
(q) "Nonstatutory Stock Option" shall mean an Option not intended to
-------------------------
qualify as an Incentive Stock Option, as designated in the applicable written
option agreement.
(r) "Officer" shall mean a person who is an officer of the Company
-------
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(s) "Option" shall mean a stock option granted pursuant to the Plan.
------
(t) "Optioned Stock" shall mean the Common Stock subject to an
--------------
Option.
(u) "Optionee" shall mean an Employee or Consultant who receives an
--------
Option.
(v) "Parent" shall mean a "parent corporation," whether now or
------
hereafter existing, as defined in Section 424(e) of the Code.
(w) "Plan" shall mean this Amended and Restated 1995 Stock Option
----
Plan.
(x) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the
----------
Exchange Act as the same may be amended from time to time, or any successor
provision.
(y) "Share" shall mean a share of the Common Stock, as adjusted in
-----
accordance with Section 14 of the Plan.
(z) "Subsidiary" shall mean a "subsidiary corporation," whether
----------
now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 14
-------------------------
of the Plan, the maximum aggregate number of shares that may be optioned and
sold under the Plan is the sum of (i) 1,480,420 shares of Common Stock plus (ii)
such number of shares as are subject to outstanding and unexercised stock
options under the Company's 1993 Stock Option Plan, as amended, as of the date
of adoption of this Plan by the shareholders, and which options are cancelled or
otherwise terminated without exercise; provided that the total number of shares
available under this Plan shall in no event exceed 2,291,344. The Shares may be
authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares that were subject thereto
shall, unless the Plan shall have been terminated, become available for future
grant under the Plan. Notwithstanding any other provision of the Plan, shares
issued under the Plan and later repurchased by the Company shall not become
available for future grant under the Plan.
<PAGE>
4. Administration of the Plan.
(a) Composition of Administrator.
(i) Multiple Administrative Bodies. If permitted by Rule 16b-3,
and by the legal requirements relating to the administration of incentive
stock option plans, if any, of applicable securities laws and the Code
(collectively, the "Applicable Laws"), the Plan may (but need not) be
administered by different administrative bodies with respect to Directors,
Officers who are not Directors, and Employees who are neither Directors nor
Officers.
(ii) Administration with respect to Directors and Officers. With
respect to grants of Options to Employees or Consultants who are also Officers
or Directors of the Company, the Plan shall be administered by (A) the Board, if
the Board may administer the Plan in compliance with Rule 16b-3 as it applies to
a plan intended to qualify thereunder as a discretionary plan and Section 162(m)
of the Code as it applies so as to qualify grants of Options to Named Executives
as performance-based compensation, or (B) a Committee designated by the Board to
administer the Plan, which Committee shall be constituted in such a manner as to
permit the Plan to comply with Rule 16b-3 as it applies to a plan intended to
qualify thereunder as a discretionary plan, to qualify grants of Options to
Named Executives as performance-based compensation under Section 162(m) of the
Code and otherwise so as to satisfy the Applicable Laws.
(iii) Administration with respect to Other Persons. With
respect to grants of Options to Employees or Consultants who are neither
Directors nor Officers of the Company, the Plan shall be administered by (A) the
Board or (B) a Committee designated by the Board, which Committee shall be
constituted in such a manner as to satisfy the Applicable Laws. The Board or
its Committee may designate one or more of the executive officers of the
Company, the Non-Insider Option Committee, to grant Optionee to eligible
employees pursuant to a set of guidelines approved by the Board of the
Committee.
(iv) General. If a Committee has been appointed pursuant to
-------
subsection (ii) or (iii) of this Section 4(a), such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board. From
time to time the Board may increase the size of any Committee and appoint
additional members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies (however caused) and remove
all members of a Committee and thereafter directly administer the Plan, all to
the extent permitted by the Applicable Laws and, in the case of a Committee
appointed under subsection (ii), to the extent permitted by Rule 16b-3 as it
applies to a plan intended to qualify thereunder as a discretionary plan, and to
the extent required under Section 162(m) of the Code to qualify grants of
Options to Named Executives as performance-based compensation.
(b) Powers of the Administrator. Subject to the provisions of the
---------------------------
Plan and in the case of a Committee, the specific duties delegated by the Board
to such Committee, the Administrator shall have the authority, in its
discretion:
<PAGE>
(i) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(n) of the Plan;
(ii) to select the Employees and Consultants to whom Options
may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation, or any vesting
acceleration or waiver of forfeiture restrictions regarding any Option and/or
the shares of Common Stock relating thereto, based in each case on such
factors as the Administrator shall determine, in its sole discretion);
(vii) to determine whether, to what extent and under what
circumstances Common Stock and other amounts payable with respect to an award
under this Plan shall be deferred either automatically or at the election of
the participant (including providing for and determining the amount, if any,
of any deemed earnings on any deferred amount during any deferral period); and
(viii) to reduce the exercise price of any Option to the
then current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option shall have declined since the date the Option was
granted;
(c) Effect of Administrator's Decision. All decisions, determinations
----------------------------------
and interpretations of the Administrator shall be final and binding on all
Optionees and any other holders of any Options.
5. Eligibility.
-----------
(a) Recipients of Grants. Nonstatutory Stock Options may be granted to
--------------------
Employees and Consultants. Incentive Stock Options may be granted only to
Employees, provided, however, that Employees of an Affiliate shall not be
eligible to receive Incentive Stock Options. An Employee or Consultant who has
been granted an Option may, if he or she is otherwise eligible, be granted an
additional Option or Options.
(b) Type of Option. Each Option shall be designated in the written
--------------
option agreement as either an Incentive Stock Option or a Nonstatutory Stock
Option. However, notwithstanding such designations, to the extent that the
aggregate Fair Market Value of Shares
<PAGE>
with respect to which Incentive Stock Options are exercisable for the first
time by an Optionee during any calendar year (under all plans of the Company
or any Parent or Subsidiary) exceeds $100,000, such excess Options shall be
treated as Nonstatutory Stock Options. For purposes of this Section 5(b),
Incentive Stock Options shall be taken into account in the order in which they
were granted, and the Fair Market Value of the Shares shall be determined as
of the time the Option with respect to such Shares is granted.
(c) No Employment Rights. The Plan shall not confer upon any Optionee
--------------------
any right with respect to continuation of employment or consulting
relationship with the Company, nor shall it interfere in any way with his or
her right or the Company's right to terminate his or her employment or
consulting relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon the earlier to occur
------------
of its adoption by the Board or its approval by the shareholders of the Company
as described in Section 20 of the Plan. It shall continue in effect for a term
of ten (10) years unless sooner terminated under Section 16 of the Plan.
7. Term of Option. The term of each Option shall be the term stated in the
--------------
Option Agreement; provided, however, that in the case of an Incentive Stock
Option, the term shall be no more than ten (10) years from the date of grant
thereof or such shorter term as may be provided in the Option Agreement.
However, in the case of an Option granted to an Optionee who, at the time the
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the term of the Option shall be five (5) years from the date of grant thereof or
such shorter term as may be provided in the Option Agreement.
8. Limitation on Grants to Employees. Subject to adjustment as provided in
---------------------------------
this Plan, the maximum number of Shares which may be subject to options granted
to any one Employee under this Plan for any fiscal year of the Company shall be
350,000.
9. Option Exercise Price and Consideration.
---------------------------------------
(a) Exercise Price. The per Share exercise price for the Shares to be
--------------
issued pursuant to exercise of an Option shall be such price as is determined
by the Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the grant of
such Incentive Stock Option, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the per Share exercise price shall be no less than 110% of the
Fair Market Value per Share on the date of grant;
(B) granted to any other Employee, the per Share exercise price
shall be no less than 100% of the Fair Market Value per Share on the date of
grant.
<PAGE>
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of the grant of such
Option, owns stock representing more than ten percent (10%) of the voting
power of all classes of stock of the Company or any Parent or Subsidiary, the
per Share exercise price shall be no less than 110% of the Fair Market Value
per Share on the date of the grant;
(B) granted to a person who, at the time of the grant of such
Option, is a Named Executive of the Company, the per share Exercise Price
shall be no less than 100% of the Fair Market Value on the date of grant;
(C) granted to any person other than a Named Executive, the per
Share exercise price shall be no less than 85% of the Fair Market Value per
Share on the date of grant.
(iii) In the case of an Option granted on or after the effective
date of registration of any class of equity security of the Company pursuant
to Section 12 of the Exchange Act and prior to six months after the
termination of such registration, the per Share exercise price shall be no
less than 100% of the Fair Market Value per Share on the date of grant.
(b) Permissible Consideration. The consideration to be paid for the
-------------------------
Shares to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Administrator (and, in the case of an
Incentive Stock Option, shall be determined at the time of grant) and may
consist entirely of (1) cash, (2) check, (3) promissory note, (4) other Shares
that (x) in the case of Shares acquired upon exercise of an Option either have
been owned by the Optionee for more than six months on the date of surrender
or were not acquired, directly or indirectly, from the Company, and (y) have a
Fair Market Value on the date of surrender equal to the aggregate exercise
price of the Shares as to which said Option shall be exercised, (5)
authorization from the Company to retain from the total number of Shares as to
which the Option is exercised that number of Shares having a Fair Market Value
on the date of exercise equal to the exercise price for the total number of
Shares as to which the Option is exercised, (6) delivery of a properly
executed exercise notice together with irrevocable instructions to a broker to
deliver promptly to the Company the amount of sale or loan proceeds required
to pay the exercise price, (7) delivery of an irrevocable subscription
agreement for the Shares that irrevocably obligates the option holder to take
and pay for the Shares not more than twelve months after the date of delivery
of the subscription agreement, (8) any combination of the foregoing methods of
payment, or (9) such other consideration and method of payment for the
issuance of Shares to the extent permitted under Applicable Laws. In making
its determination as to the type of consideration to accept, the Administrator
shall consider if acceptance of such consideration may be reasonably expected
to benefit the Company.
10. Exercise of Option.
------------------
<PAGE>
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable at such times and under such conditions
as determined by the Administrator, including performance criteria with
respect to the Company and/or the Optionee, and as shall be permissible under
the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 9(b) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. The Company shall issue (or
cause to be issued) such stock certificate promptly upon exercise of the
Option. No adjustment will be made for a dividend or other right for which the
record date is prior to the date the stock certificate is issued, except as
provided in Section 14 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of the
Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) Termination of Status as an Employee or Consultant. In the event
--------------------------------------------------
of termination of an Optionee's Continuous Status as an Employee or
Consultant, such Optionee may, but only within thirty (30) days (or such other
period of time, not exceeding three (3) months in the case of an Incentive
Stock Option or six (6) months in the case of a Nonstatutory Stock Option, as
is determined by the Administrator, with such determination in the case of an
Incentive Stock Option being made at the time of grant of the Option) after
the date of such termination (but in no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement),
exercise his or her Option to the extent that he or she was entitled to
exercise it at the date of such termination. To the extent that the Optionee
was not entitled to exercise the Option at the date of such termination, or if
the Optionee does not exercise such Option (which he or she was entitled to
exercise) within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding Section 10(b) above, in
----------------------
the event of termination of an Optionee's Continuous Status as an Employee or
Consultant as a result of his or her total and permanent disability (as
defined in Section 22(e)(3) of the Code), he or she may, but only within six
(6) months (or such other period of time not exceeding twelve (12) months as
is determined by the Administrator, with such determination in the case of an
Incentive Stock Option being made at the time of grant of the Option) from the
date of such termination (but in no event later than the date of expiration of
the term of such Option as set forth in the Option Agreement), exercise his or
her Option to the extent he or she was entitled to exercise it at the
<PAGE>
date of such termination. To the extent that he or she was not entitled to
exercise the Option at the date of termination, or if he does not exercise
such Option (which he was entitled to exercise) within the time specified
herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
-----------------
(i) during the term of the Option who is at the time of his or
her death an Employee or Consultant of the Company and who shall have been in
Continuous Status as an Employee or Consultant since the date of grant of the
Option, the Option may be exercised, at any time within six (6) months (or
such other period of time, not exceeding six (6) months, as is determined by
the Administrator, with such determination in the case of an Incentive Stock
Option being made at the time of grant of the Option) following the date of
death (but in no event later than the date of expiration of the term of such
Option as set forth in the Option Agreement), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance
but only to the extent of the right to exercise that would have accrued had
the Optionee continued living and remained in Continuous Status as an Employee
or Consultant three (3) months (or such other period of time as is determined
by the Administrator as provided above) after the date of death, subject to
the limitation set forth in Section 5(b); or
(ii) within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Administrator, with such
determination in the case of an Incentive Stock Option being made at the time
of grant of the Option) after the termination of Continuous Status as an
Employee or Consultant, the Option may be exercised, at any time within ninety
(90) days following the date of death (but in no event later than the date of
expiration of the term of such Option as set forth in the Option Agreement),
by the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that had accrued at the date of termination.
(e) Rule 16b-3. Options granted to persons subject to Section 16(b) of
----------
the Exchange Act must comply with Rule 16b-3 and shall contain such additional
conditions or restrictions as may be required thereunder to qualify for the
maximum exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
11. Withholding Taxes. As a condition to the exercise of Options granted
-----------------
hereunder, the Optionee shall make such arrangements as the Administrator may
require for the satisfaction of any federal, state, local or foreign
withholding tax obligations that may arise in connection with the exercise,
receipt or vesting of such Option. The Company shall not be required to issue
any Shares under the Plan until such obligations are satisfied.
12. Stock Withholding to Satisfy Withholding Tax Obligations. At the
--------------------------------------------------------
discretion of the Administrator, Optionees may satisfy withholding obligations
as provided in this paragraph. When an Optionee incurs tax liability in
connection with an Option which tax liability is subject to tax withholding
under applicable tax laws, and the Optionee is obligated to pay the Company an
amount required to be withheld under applicable tax laws, the Optionee may
satisfy the withholding tax obligation by one or some combination of the
following methods: (a) by cash
<PAGE>
payment, or (b) out of Optionee's current compensation, (c) if permitted by
the Administrator, in its discretion, by surrendering to the Company Shares
that (i) in the case of Shares previously acquired from the Company, have been
owned by the Optionee for more than six months on the date of surrender, and
(ii) have a fair market value on the date of surrender equal to or less than
Optionee's marginal tax rate times the ordinary income recognized, or (d) by
electing to have the Company withhold from the Shares to be issued upon
exercise of the Option that number of Shares having a fair market value equal
to the amount required to be withheld. For this purpose, the fair market value
of the Shares to be withheld shall be determined on the date that the amount
of tax to be withheld is to be determined (the "Tax Date").
Any surrender by an Officer or Director of previously owned Shares to
satisfy tax withholding obligations arising upon exercise of this Option must
comply with the applicable provisions of Rule 16b-3 and shall be subject to
such additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
All elections by an Optionee to have Shares withheld to satisfy tax
withholding obligations shall be made in writing in a form acceptable to the
Administrator and shall be subject to the following restrictions:
(a) the election must be made on or prior to the applicable Tax Date;
(b) once made, the election shall be irrevocable as to the particular
Shares of the Option as to which the election is made;
(c) all elections shall be subject to the consent or disapproval of the
Administrator;
(d) if the Optionee is an Officer or Director, the election must comply
with the applicable provisions of Rule 16b-3 and shall be subject to such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
In the event the election to have Shares withheld is made by an Optionee
and the Tax Date is deferred under Section 83 of the Code because no election
is filed under Section 83(b) of the Code, the Optionee shall receive the full
number of Shares with respect to which the Option is exercised but such
Optionee shall be unconditionally obligated to tender back to the Company the
proper number of Shares on the Tax Date.
13. Non-Transferability of Options. The Option may not be sold, pledged,
------------------------------
assigned, hypothecated, transferred, or disposed of in any manner other than
by will or by the laws of descent or distribution. The designation of a
beneficiary by an Optionee will not constitute a transfer. An Option may be
exercised, during the lifetime of the Optionee, only by the Optionee or a
transferee permitted by this Section 13.
<PAGE>
14. Adjustments Upon Changes in Capitalization; Corporate Transactions.
------------------------------------------------------------------
(a) Adjustment. Subject to any required action by the shareholders of
----------
the Company, the number of shares of Common Stock covered by each outstanding
Option, the number of shares of Common Stock that have been authorized for
issuance under the Plan but as to which no Options have yet been granted or
which have been returned to the Plan upon cancellation or expiration of an
Option, the maximum number of shares of Common Stock for which Options may be
granted to any employee under Section 8 of the Plan, and the price per share
of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split,
stock dividend, combination or reclassification of the Common Stock, or any
other increase or decrease in the number of issued shares of Common Stock
effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Administrator, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to an Option.
(b) Corporate Transactions. In the event of the proposed dissolution
----------------------
or liquidation of the Company, the Option will terminate immediately prior to
the consummation of such proposed action, unless otherwise provided by the
Administrator. The Administrator may, in the exercise of its sole discretion
in such instances, declare that any Option shall terminate as of a date fixed
by the Administrator and give each Optionee the right to exercise his or her
Option as to all or any part of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, the Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation or a parent or subsidiary of such successor corporation, unless
the Administrator determines, in the exercise of its sole discretion and in
lieu of such assumption or substitution, that the Optionee shall have the
right to exercise the Option as to some or all of the Optioned Stock,
including Shares as to which the Option would not otherwise be exercisable. If
the Administrator makes an Option exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Administrator
shall notify the Optionee that the Option shall be exercisable for a period of
fifteen (15) days from the date of such notice, and the Option will terminate
upon the expiration of such period.
15. Time of Granting Options. The date of grant of an Option shall, for
------------------------
all purposes, be the date on which the Administrator makes the determination
granting such Option or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option is so granted within a reasonable time after the date of such
grant.
<PAGE>
16. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may amend or terminate the
-------------------------
Plan from time to time in such respects as the Board may deem advisable;
provided that, the following revisions or amendments shall require approval of
the shareholders of the Company in the manner described in Section 20 of the
Plan:
(i) any increase in the number of Shares subject to the Plan,
other than an adjustment under Section 14 of the Plan;
(ii) any change in the designation of the class of persons
eligible to be granted Options;
(iii) any change in the limitation on grants to employees as
described in Section 8 of the Plan or other changes which would require
shareholder approval to qualify options granted hereunder as performance-based
compensation under Section 162(m) of the Code; or
(iv) any revision or amendment requiring shareholder approval in
order to preserve the qualification of the Plan under Rule 16b-3.
(b) Shareholder Approval. If any amendment requiring shareholder
--------------------
approval under Section 13(a) of the Plan is made subsequent to the first
registration of any class of equity securities by the Company under Section 12
of the Exchange Act, such shareholder approval shall be solicited as described
in Section 20 of the Plan.
(c) Effect of Amendment or Termination. Any such amendment or
----------------------------------
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Board, which agreement must be in writing and signed by the Optionee
and the Company.
17. Conditions Upon Issuance of Shares. Shares shall not be issued
----------------------------------
pursuant to the exercise of an Option unless the exercise of such Option and
the issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the Securities
Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without
any present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
<PAGE>
18. Reservation of Shares. The Company, during the term of this Plan,
---------------------
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of the
Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
19. Option Agreement. Options shall be evidenced by written option
----------------
agreements in such form as the Board shall approve.
20. Shareholder Approval.
--------------------
(a) Continuance of the Plan shall be subject to approval by the
shareholders of the Company within twelve (12) months before or after the date
the Plan is adopted. Such shareholder approval shall be obtained in the manner
and to the degree required under applicable federal and state law and the
rules of any stock exchange upon which the Shares are listed.
(b) In the event that the Company registers any class of equity
securities pursuant to Section 12 of the Exchange Act, any required approval
of the shareholders of the Company obtained after such registration shall be
solicited substantially in accordance with Section 14(a) of the Exchange Act
and the rules and regulations promulgated thereunder.
(c) If any required approval by the shareholders of the Plan itself
or of any amendment thereto is solicited at any time otherwise than in the
manner described in Section 20(b) hereof, then the Company shall, at or prior
to the first annual meeting of shareholders held subsequent to the later of
(1) the first registration of any class of equity securities of the Company
under Section 12 of the Exchange Act or (2) the granting of an Option
hereunder to an officer or director after such registration, do the following:
(i) furnish in writing to the holders entitled to vote for the
Plan substantially the same information that would be required (if proxies to
be voted with respect to approval or disapproval of the Plan or amendment were
then being solicited) by the rules and regulations in effect under Section
14(a) of the Exchange Act at the time such information is furnished; and
(ii) file with, or mail for filing to, the Securities and
Exchange Commission four copies of the written information referred to in
subsection (i) hereof not later than the date on which such information is
first sent or given to shareholders.
21. Information to Optionees. The Company shall provide to each Optionee,
------------------------
during the period for which such Optionee has one or more Options outstanding,
copies of all annual reports and other information which are provided to all
shareholders of the Company.
<PAGE>
Exhibit 4.5
FRACTAL DESIGN CORPORATION
1995 DIRECTORS' STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Directors' Stock Option
--------------------
Plan are to attract and retain the best available personnel for service as
Directors of the Company, to provide additional incentive to the Outside
Directors of the Company to serve as Directors, and to encourage their continued
service on the Board.
All options granted hereunder shall be "nonstatutory stock options."
2. Definitions. As used herein, the following definitions shall apply:
-----------
(a) "Board" shall mean the Board of Directors of the Company.
-----
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(c) "Common Stock" shall mean the Common Stock of the Company.
------------
(d) "Company" shall mean Fractal Design Corporation, a Delaware
-------
corporation.
(e) "Continuous Status as a Director" shall mean the absence of any
-------------------------------
interruption or termination of service as a Director.
(f) "Director" shall mean a member of the Board.
--------
(g) "Employee" shall mean any person, including officers and
--------
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient in and of
itself to constitute "employment" by the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
(i) "Option" shall mean a stock option granted pursuant to the Plan.
------
All options shall be nonstatutory stock options (i.e., options that are not
intended to qualify as incentive stock options under Section 422 of the Code).
(j) "Optioned Stock" shall mean the Common Stock subject to an
--------------
Option.
(k) "Optionee" shall mean an Outside Director who receives an Option.
--------
(l) "Outside Director" shall mean a Director who is not an Employee.
----------------
(m) "Parent" shall mean a "parent corporation", whether now or
------
hereafter existing, as defined in Section 424(e) of the Code.
<PAGE>
(n) "Plan" shall mean this 1995 Directors' Stock Option Plan.
----
(o) "Share" shall mean a share of the Common Stock, as adjusted in
-----
accordance with Section 11 of the Plan.
(p) "Subsidiary" shall mean a "subsidiary corporation", whether now
----------
or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
-------------------------
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 175,000 Shares (the "Pool") of Common Stock. The Shares may
be authorized, but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan. If Shares which were acquired upon exercise of an
Option are subsequently repurchased by the Company, such Shares shall not in any
event be returned to the Plan and shall not become available for future grant
under the Plan.
4. Administration of and Grants of Options under the Plan.
------------------------------------------------------
(a) Administrator. Except as otherwise required herein, the Plan
shall be administered by the Board.
(b) Procedure for Grants. All grants of Options hereunder shall be
automatic and nondiscretionary and shall be made strictly in accordance with the
following provisions:
(i) No person shall have any discretion to select which Outside
Directors shall be granted Options or to determine the number of Shares to be
covered by Options granted to Outside Directors.
(ii) Each person who becomes an Outside Director after the
effective date of the plan, whether through election by the shareholders of
the Company or appointment by the Board of Directors to fill a vacancy shall
be automatically granted an Option to purchase 20,000 Shares (the "First
Option") on such date.
(iii) Each person who is elected to serve as an Outside Director
at an Annual Meeting of Shareholders shall be automatically granted an Option to
purchase 5,000 Shares (a "Subsequent Option") on the date of such Annual
Meeting, provided that, on such date, he or she shall have served on the Board
for at least six (6) months prior to the date of such Annual Meeting.
(iv) Notwithstanding the provisions of subsections (ii) and (iii)
hereof, in the event that a grant would cause the number of Shares subject to
outstanding Options plus the number of Shares previously purchased upon exercise
of Options to exceed the Pool, then each such automatic grant shall be for that
number of Shares determined by dividing the total
<PAGE>
number of Shares remaining available for grant by the number of Outside
Directors receiving an Option on such date on the automatic grant date. Any
further grants shall then be deferred until such time, if any, as additional
Shares become available for grant under the Plan through action of the
shareholders to increase the number of Shares which may be issued under the
Plan or through cancellation or expiration of Options previously granted
hereunder.
(v) Notwithstanding the provisions of subsections (ii) and (iii)
hereof, any grant of an Option made before the Company has obtained shareholder
approval of the Plan in accordance with Section 17 hereof shall be conditioned
upon obtaining such shareholder approval of the Plan in accordance with Section
17 hereof.
(vi) The terms of each First Option granted hereunder shall be
as follows:
(1) the First Option shall be exercisable only while the Outside
Director remains a Director of the Company, except as set forth in Section 9
hereof.
(2) the exercise price per Share shall be 100% of the fair
market value per Share on the date of grant of the First Option, determined in
accordance with Section 8 hereof.
(3) the First Option shall become exercisable in installments
cumulatively as to 25% of the Shares subject to the First Option on each of the
first, second, third and fourth anniversaries of the date of grant of the First
Option.
(vii) The terms of each Subsequent Option granted hereunder shall
be as follows:
(1) the Subsequent Option shall be exercisable only while the
Outside Director remains a Director of the Company, except as set forth in
Section 9 hereof.
(2) the exercise price per Share shall be 100% of the fair
market value per Share on the date of grant of the Subsequent Option,
determined in accordance with Section 8 hereof.
(3) the Subsequent Option shall become exercisable as to fifty
percent (50%) of the Shares subject to the Subsequent Option on the first and
second anniversaries of the date of grant of the Subsequent Option.
(c) Powers of the Board. Subject to the provisions and restrictions
-------------------
of the Plan, the Board shall have the authority, in its discretion: (i) to
determine, upon review of relevant information and in accordance with Section
8(b) of the Plan, the fair market value of the Common Stock; (ii) to determine
the exercise price per share of Options to be granted, which exercise price
shall be determined in accordance with Section 8(a) of the Plan; (iii) to
interpret the Plan; (iv) to prescribe, amend and rescind rules and regulations
relating to the Plan; (v) to authorize any person to execute on behalf of the
Company any instrument required to effectuate
<PAGE>
the grant of an Option previously granted hereunder; and (vi) to make all
other determinations deemed necessary or advisable for the administration of
the Plan.
(d) Effect of Board's Decision. All decisions, determinations and
--------------------------
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
(e) Suspension or Termination of Option. If the President or his or
-----------------------------------
her designee reasonably believes that an Optionee has committed an act of
misconduct, the President may suspend the Optionee's right to exercise any
option pending a determination by the Board of Directors (excluding the Outside
Director accused of such misconduct). If the Board of Directors (excluding the
Outside Director accused of such misconduct) determines an Optionee has
committed an act of embezzlement, fraud, dishonesty, nonpayment of an obligation
owed to the Company, breach of fiduciary duty or deliberate disregard of the
Company rules resulting in loss, damage or injury to the Company, or if an
Optionee makes an unauthorized disclosure of any Company trade secret or
confidential information, engages in any conduct constituting unfair
competition, induces any Company customer to breach a contract with the Company
or induces any principal for whom the Company acts as agent to terminate such
agency relationship, neither the Optionee nor his or her estate shall be
entitled to exercise any option whatsoever. In making such determination, the
Board of Directors (excluding the Outside Director accused of such misconduct)
shall act fairly and shall give the Optionee an opportunity to appear and
present evidence on Optionee's behalf at a hearing before the Board or a
committee of the Board.
5. Eligibility. Options may be granted only to Outside Directors. All
-----------
Options shall be automatically granted in accordance with the terms set forth in
Section 4(b) hereof. An Outside Director who has been granted an Option may, if
he or she is otherwise eligible, be granted an additional Option or Options in
accordance with such provisions.
The Plan shall not confer upon any Optionee any right with respect to
continuation of service as a Director or nomination to serve as a Director, nor
shall it interfere in any way with any rights which the Director or the Company
may have to terminate his or her directorship at any time.
6. Term of Plan; Effective Date. The Plan shall become effective on the
----------------------------
effectiveness of the registration statement under the Securities Act of 1933
relating to the Company's initial public offering of securities. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 13 of the Plan.
7. Term of Options. The term of each Option shall be ten (10) years from
---------------
the date of grant thereof.
8. Exercise Price and Consideration.
--------------------------------
(a) Exercise Price. The per Share exercise price for the Shares to be
--------------
issued pursuant to exercise of an Option shall be 100% of the fair market value
per Share on the date of grant of the Option.
<PAGE>
(b) Fair Market Value. The fair market value shall be determined by
-----------------
the Board; provided, however, that where there is a public market for the Common
Stock, the fair market value per Share shall be the mean of the bid and asked
prices of the Common Stock in the over-the-counter market on the date of grant,
as reported in The Wall Street Journal (or, if not so reported, as otherwise
reported by the National Association of Securities Dealers Automated Quotation
("Nasdaq") System) or, in the event the Common Stock is traded on the Nasdaq
National Market or listed on a stock exchange, the fair market value per Share
shall be the closing price on such system or exchange on the date of grant of
the Option, as reported in The Wall Street Journal. With respect to any Options
granted hereunder concurrently with the initial effectiveness of the Plan, the
fair market value shall be the Price to Public as set forth in the final
prospectus relating to such initial public offering.
(c) Form of Consideration. The consideration to be paid for the
---------------------
Shares to be issued upon exercise of an Option shall consist entirely of cash,
check, other Shares of Common Stock having a fair market value on the date of
surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised (which, if acquired from the Company, shall have been
held for at least six months), or any combination of such methods of payment
and/or any other consideration or method of payment as shall be permitted under
applicable corporate law.
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable at such times as are set forth in Section
4(b) hereof; provided, however, that no Options shall be exercisable prior to
shareholder approval of the Plan in accordance with Section 17 hereof has been
obtained.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may consist of any consideration and method of
payment allowable under Section 8(c) of the Plan. Until the issuance (as
evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company) of the stock certificate evidencing
such Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. A share certificate for the number of Shares so
acquired shall be issued to the Optionee as soon as practicable after exercise
of the Option. No adjustment will be made for a dividend or other right for
which the record date is prior to the date the stock certificate is issued,
except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes
of the Plan and for sale under the Option, by the number of Shares as to which
the Option is exercised.
<PAGE>
(b) Termination of Status as a Director. If an Outside Director
-----------------------------------
ceases to serve as a Director, he or she may, but only within ninety (90) days
after the date he or she ceases to be a Director of the Company, exercise his or
her Option to the extent that he or she was entitled to exercise it at the date
of such termination. Notwithstanding the foregoing, in no event may the Option
be exercised after its term set forth in Section 7 has expired. To the extent
that such Outside Director was not entitled to exercise an Option at the date of
such termination, or does not exercise such Option (which he or she was entitled
to exercise) within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding Section 9(b) above, in
----------------------
the event a Director is unable to continue his or her service as a Director
with the Company as a result of his or her total and permanent disability (as
defined in Section 22(e)(3) of the Internal Revenue Code), he or she may, but
only within six (6) months (or such other period of time not exceeding twelve
(12) months as is determined by the Board) from the date of such termination,
exercise his or her Option to the extent he or she was entitled to exercise it
at the date of such termination. Notwithstanding the foregoing, in no event
may the Option be exercised after its term set forth in Section 7 has expired.
To the extent that he or she was not entitled to exercise the Option at the
date of termination, or if he or she does not exercise such Option (which he
or she was entitled to exercise) within the time specified herein, the Option
shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
-----------------
(i) During the term of the Option who is, at the time of his or
her death, a Director of the Company and who shall have been in Continuous
Status as a Director since the date of grant of the Option, the Option may be
exercised, at any time within ninety (90) days following the date of death, by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that would have accrued had the Optionee continued living and
remained in Continuous Status as Director for ninety (90) days (or such lesser
period of time as is determined by the Board) after the date of death.
Notwithstanding the foregoing, in no event may the Option be exercised after
its term set forth in Section 7 has expired.
(ii) Within three (3) months after the termination of
Continuous Status as a Director, the Option may be exercised, at any time
within six (6) months following the date of death, by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent of the right to exercise that had accrued
at the date of termination. Notwithstanding the foregoing, in no event may the
option be exercised after its term set forth in Section 7 has expired.
10. Nontransferability of Options. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution or pursuant to a qualified
domestic relations order (as defined by the Code or the rules thereunder). The
designation of a beneficiary by an Optionee does not constitute a transfer. An
Option may be exercised during the lifetime of an Optionee only by the Optionee
or a transferee permitted by this Section.
<PAGE>
11. Adjustments Upon Changes in Capitalization; Corporate Transactions.
(a) Adjustment. Subject to any required action by the shareholders of
----------
the Company, the number of shares of Common Stock covered by each outstanding
Option, and the number of shares of Common Stock which have been authorized
for issuance under the Plan but as to which no Options have yet been granted
or which have been returned to the Plan upon cancellation or expiration of an
Option, as well as the price per share of Common Stock covered by each such
outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive. Except
as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares of Common Stock subject to an Option.
(b) Corporate Transactions. In the event of (i) a dissolution or
----------------------
liquidation of the Company, (ii) a sale of all or substantially all of the
Company's assets, (iii) a merger or consolidation in which the Company is not
the surviving corporation, or (iv) any other capital reorganization in which
more than fifty percent (50%) of the shares of the Company entitled to vote
are exchanged, the Company shall give to the Eligible Director, at the time of
adoption of the plan for liquidation, dissolution, sale, merger, consolidation
or reorganization, either a reasonable time thereafter within which to
exercise the Option, including Shares as to which the Option would not be
otherwise exercisable, prior to the effectiveness of such liquidation,
dissolution, sale, merger, consolidation or reorganization, at the end of
which time the Option shall terminate, or the right to exercise the Option,
including Shares as to which the Option would not be otherwise exercisable (or
receive a substitute option with comparable terms), as to an equivalent number
of shares of stock of the corporation succeeding the Company or acquiring its
business by reason of such liquidation, dissolution, sale, merger,
consolidation or reorganization.
12. Time of Granting Options. The date of grant of an Option shall, for
------------------------
all purposes, be the date determined in accordance with Section 4(b) hereof.
Notice of the determination shall be given to each Outside Director to whom an
Option is so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may amend or terminate the
-------------------------
Plan from time to time in such respects as the Board may deem advisable;
provided that, to the extent necessary and desirable to comply with Rule 16b-3
under the Exchange Act (or any other applicable law or regulation), the
Company shall obtain approval of the shareholders of the Company to Plan
amendments to the extent and in the manner required by such law or regulation.
Notwithstanding the foregoing, the provisions set forth in Section 4 of this
Plan (and any other
<PAGE>
Sections of this Plan that affect the formula award terms required to be
specified in this Plan by Rule 16b-3) shall not be amended more than once
every six months, other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder.
(b) Effect of Amendment or Termination. Any such amendment or
----------------------------------
termination of the Plan that would impair the rights of any Optionee shall not
affect Options already granted to such Optionee and such Options shall remain
in full force and effect as if this Plan had not been amended or terminated,
unless mutually agreed otherwise between the Optionee and the Board, which
agreement must be in writing and signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
----------------------------------
pursuant to the exercise of an Option unless the exercise of such Option and
the issuance and delivery of such Shares pursuant thereto shall comply with
all relevant provisions of law, including, without limitation, the Securities
Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, state securities laws, and the requirements of any
stock exchange upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment
and without any present intention to sell or distribute such Shares, if, in
the opinion of counsel for the Company, such a representation is required by
any of the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan,
---------------------
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
16. Option Agreement. Options shall be evidenced by written option
----------------
agreements in such form as the Board shall approve.
17. Shareholder Approval. Continuance of the Plan shall be subject to
--------------------
approval by the shareholders of the Company at or prior to the first annual
meeting of shareholders held subsequent to the granting of an Option
hereunder. If such shareholder approval is obtained at a duly held
shareholders' meeting, it may be obtained by the affirmative vote of the
holders of a majority of the outstanding shares of the Company present or
represented and entitled to vote thereon. If such shareholder approval is
obtained by written consent, it may be obtained by the written consent of the
holders of a majority of the outstanding shares of the Company. Options may be
granted, but not exercised, before such shareholder approval.
<PAGE>
Exhibit 5.1
-----------
May 30, 1997
MetaCreations Corporation
6303 Carpinteria Avenue
Carpinteria, CA 93013
RE: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about June 2,1997 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 68,270 shares of your Common Stock
reserved for issuance under Fractal Design Corporation's ("Fractal's") 1992
Assumed Ray Dream, Inc. Stock Option Plan, 836,016 shares under Fractal's 1993
Stock Option Plan, 703,446 shares under Fractal's 1995 Directors' Stock Option
Plan and 1,500,000 additional shares under MetaCreations 1995 Stock Option Plan
(which Plans are collectively refered to herein as the "Plans" and which shares
are collectively refered to herein as the "Shares"). As legal counsel for
MetaCreations Corporation, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares under the Plans.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance of
the Shares pursuant to the Registration Statement and the Plans, and upon
completion of the actions being taken in order to permit such transactions to be
carried out in accordance with the securities laws of the various states where
required, the Shares 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 and further consent to the use of our name wherever appearing in the
Registration Statement and any subsequent amendments to it.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in this Registration Statement
of MetaCreations Corporation on Form S-8 (to be filed on or about June 2, 1997)
of our report dated February 3, 1997, except for Note 16 as to which the date is
February 11, 1997, on our audits of the consolidated financial statements and
financial statement schedule of MetaCreations Corporation (formerly known as
"MetaTools, Inc.") as of December 31, 1996 and 1995 and for each of the three
years in the period ended December 31, 1996.
Coopers & Lybrand L.L.P.
Sherman Oaks, California
May 28, 1997
