<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 5, 1996
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GEOWORKS
(Exact name of issuer as specified in its charter)
CALIFORNIA 94-2920371
(State of incorporation) (I.R.S. Employer Identification No.)
960 Atlantic Avenue
Alameda, California 94501
(Address of principal executive offices)
SUPPLEMENTAL STOCK OPTION PLAN
(Full title of the plan)
GORDON E. MAYER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GEOWORKS
960 ATLANTIC AVENUE
ALAMEDA, CALIFORNIA 94501
(510) 814-1660
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
HERBERT P. FOCKLER, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
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<PAGE> 2
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value....... 550,000 shares (1) $21.875(2) $12,031,250.00 $4,148.71
- ---------------------------------------------------------------------------------------------
</TABLE>
(1) Represents the number of shares authorized to be issued under the
Supplemental Stock Option Plan.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based upon the average of the high and low prices of the Common
Stock as reported in the NASDAQ National Market System on July 31, 1996,
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
-ii-
<PAGE> 3
GEOWORKS
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by References
There are hereby incorporated by reference in this
Registration Statement the following documents and information heretofore filed
by Geoworks (the "Company") with the Securities and Exchange Commission:
(1) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed April 26, 1994 pursuant
to Section 12(g) of the Exchange Act and declared effective on June 22, 1994.
(2) The Company's annual report on Form 10-K under the
Exchange Act for the fiscal year ended March 31, 1996.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
on or after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Articles of Incorporation limit the liability of
directors for monetary damages to the maximum extent permitted by California
law. Such limitation of liability has no effect on the availability of equitable
remedies, such as injunctive relief or rescission.
The Company's Bylaws provide that the Company shall indemnify
its directors and officers and may indemnify its employees and agents (other
than officers and directors) against certain liabilities to the fullest extent
permitted by California law. The Company is also empowered under its Bylaws to
enter into indemnification agreements with its directors, officers, employees
and agents and to purchase insurance on behalf of any director, officer,
employee or agent for any liability arising out of his or her
II-1
<PAGE> 4
actions in such capacity, regardless of whether the Bylaws would permit
indemnification. The Company has entered into indemnification agreements with
each of its current directors, officers and certain of its employees which
provide for indemnification of, and advancement of expenses to, such persons to
the fullest extent permitted by law, including by reason of action or inaction
occurring in the past and circumstances in which indemnification and advancement
of expenses are permitted under applicable law. It is the opinion of the staff
of the Securities and Exchange Commission that indemnification provisions such
as those contained in these agreements have no effect on a director's or
officer's liability under the federal securities laws.
Pursuant to underwriting agreements among the Company and the
underwriters of the Company's initial public offering dated June 22, 1994 and a
subsequent public offering dated November 14, 1995, the Company's officers and
directors and other persons who control the Company are indemnified against any
and all losses, claims, damages or liabilities to which such persons may become
subject under the Securities Act, Exchange Act and common law which arise out of
any untrue statement regarding or omission of a material fact contained in the
registration statement for such offerings if such statement or omission was made
in reliance upon and in conformity with information provided to the Company in
writing by any underwriter of the offering.
See also the undertakings set out in response to Item 9 herein.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C> <C>
4.1 Supplemental Stock Option Plan
4.2 Form of Stock Option Agreement under the Supplemental Stock
Option Plan
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors (see page II-6)
24.1 Power of Attorney (see page II-4)
</TABLE>
Item 9. Undertakings.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a posteffective amendment to this registration statement 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.
II-2
<PAGE> 5
(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to law, the Company's Articles of Incorporation, the
Company's Bylaws or the Company's indemnification agreements, the Company has
been informed 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Company will, unless in the opinion of its counsel the
matter has already been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of 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> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Alameda, State of California, on this 2nd day
of August, 1996.
GEOWORKS
By:/s/ DANIEL L. SICOTTE
-------------------------------------
Daniel L. Sicotte, Treasurer
(Duly Authorized Officer and Principal
Financial Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Gordon E. Mayer, Jordan J.
Breslow and Daniel L. Sicotte, and each of them, as his or her attorney-in-fact,
with full power of substitution in each, for him or her in any and all
capacities to sign any amendments 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 substitutes, may do or cause
to be done by virtue hereof.
II-4
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
s/ BRIAN P. DOUGHERTY Chairman of the Board July 31, 1996
- -----------------------------
Brian P. Dougherty
/s/ GORDON E. MAYER President, Chief Executive Officer July 31, 1996
- ----------------------------- and Director (Principal Executive
Gordon E. Mayer Officer)
/s/ DANIEL L. SICOTTE Treasurer (Principal Financial July 31, 1996
- ----------------------------- and Accounting Officer)
Daniel L. Sicotte
/s/ BRUCE W. DUNLEVIE Director July 31, 1996
- -----------------------------
Bruce W. Dunlevie
/s/ HARRY W. MCKINNEY Director July 31, 1996
- -----------------------------
Harry W. McKinney
- ----------------------------- Director ________, 1996
Reijo Paajanen
/s/ ERIC E. SCHMIDT Director July 31, 1996
- -----------------------------
Eric E. Schmidt
/s/ Clive G. Smith Director July 31, 1996
- -----------------------------
Clive G. Smith
- ----------------------------- Director ________, 1996
R. Duff Thompson
</TABLE>
II-5
<PAGE> 8
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Geoworks Supplemental Stock Option Plan and in the
related prospectus for the registration of 550,000 shares of its common stock,
of our reports dated April 18, 1996 with respect to the consolidated financial
statements of Geoworks incorporated by reference in the Annual Report on Form
10-K for the year ended March 31, 1996 and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
Ernst & Young LLP
San Francisco, California
August 5, 1996
II-6
<PAGE> 1
EXHIBIT 4.1
GEOWORKS
SUPPLEMENTAL STOCK OPTION 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 eligible Employees and
Consultants, and
- to promote the success of the Company's business.
Nonstatutory Stock Options may be granted under the Plan.
2. Definitions. As used herein, the following definitions shall apply:
2.1 "Administrator" means the Board or any of its Committees as shall be
administering the Plan, in accordance with Section 4 of the Plan.
2.2 "Applicable Laws" means the legal requirements relating to the
administration of stock option plans under U. S. state corporate laws,
U.S. federal and state securities laws, the Code and the applicable
laws of any foreign country or jurisdiction where Options are, or will
be, granted under the Plan.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Code" means the Internal Revenue Code of 1986, as amended.
2.5 "Committee" means a Committee appointed by the Board in accordance with
Section 4 of the Plan.
2.6 "Common Stock" means the Common Stock of the Company.
2.7 "Company" means Geoworks, a California corporation.
2.8 "Consultant" means any person, including an advisor, engaged by the
Company to render services and who is compensated for such services,
provided that the term "Consultant" shall not include any person who is
also an officer or Director of the Company.
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2.9 "Director" means a member of the Board.
2.10 "Disability" means total and permanent disability as defined in Section
22(e)(3) of the Code.
2.11 "Employee" means any person employed by the Company or any Parent or
Subsidiary of the Company, other than any person who, at the time of
the grant, is an officer or Director of the Company.
2.12 "Fair Market Value" means, as of any date, the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on
such exchange or system for the last market trading day prior to the
time of determination, as reported in The Wall Street Journal or such
other source as the Administrator deems reliable.
2.13 "Nonstatutory Stock Option" means an Option not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code
and the regulations promulgated thereunder.
2.14 "Notice of Grant" means a written notice evidencing certain terms and
conditions of an individual Option grant. The Notice of Grant is part
of the Option Agreement.
2.15 "Option" means a stock option granted pursuant to the Plan.
2.16 "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.
2.17 "Optioned Stock" means the Common Stock subject to an Option.
2.18 "Optionee" means an Employee or Consultant who holds an outstanding
Option.
2.19 "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
2.20 "Plan" means this Supplemental Stock Option Plan.
2.21 "Share" means a share of the Common Stock, as adjusted in accordance
with Section 12 of the Plan.
2.22 "Subsidiary" means a "subsidiary corporation," whether now or hereafter
existing, as defined in Section 424(f) of the Code.
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<PAGE> 3
3. Stock Subject to the Plan. Subject to the provisions of Section 12 of
the Plan, the maximum aggregate number of Shares which may be optioned
and sold under the Plan is five hundred fifty thousand (550,000)
Shares. The Shares may be authorized, but unissued, or reacquired
Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, the unpurchased Shares which were subject thereto
shall become available for future grant or sale under the Plan (unless
the Plan has terminated).
4. Administration of the Plan
4.1 Administration. The Plan shall be administered by (i) the Board or (ii)
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.
4.2 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:
4.2(a) to determine the Fair Market Value of the Common Stock, in
accordance with Section 2.12 of the Plan;
4.2(b) to select the Consultants and Employees to whom Options may be
granted hereunder;
4.2(c) to determine whether and to what extent Options are granted
hereunder;
4.2(d) to determine the number of shares of Common Stock to be
covered by each Option granted hereunder;
4.2(e) to approve forms of agreement for use under the Plan;
4.2(f) 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 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 the
shares of Common Stock relating
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<PAGE> 4
thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
4.2(g) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
4.2(h) 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;
4.2(i) to modify or amend each Option (subject to Section 15(b) of
the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options;
4.2(j) to authorize any person to execute on behalf of the Company
any instrument required to effect the grant of an Option
previously granted by the Administrator;
4.2(k) 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;
4.2(l) to make all other determinations deemed necessary or advisable
for administering the Plan.
4.3 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.
5. Eligibility. Nonstatutory Stock Options may be granted to Employees and
Consultants. If otherwise eligible, an Employee or Consultant who has
been granted an Option may be granted additional Options.
Notwithstanding anything to the contrary contained in the Plan, Options
may not be granted to Employees who are, at the time of grant, officers
or Directors under this Plan.
6. Limitations. Neither the Plan nor any Option 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.
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<PAGE> 5
7. Term of Plan. The Plan shall become effective upon its adoption by the
Board. It shall continue in effect until terminated under Section 15 of
the Plan.
8. Term of Option. The term of each Option shall be stated in the Notice
of Grant.
9. Option Exercise Price and Consideration.
9.1 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.
9.2 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.
9.3 Form of Consideration. The Administrator shall determine the acceptable
form of consideration for exercising an Option, including the method of
payment. Such consideration may consist entirely of:
9.3(a) cash;
9.3(b) check;
9.3(c) promissory note;
9.3(d) 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;
9.3(e) 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;
9.3(f) delivery of an irrevocable subscription agreement for the
Shares which irrevocably obligates the Optionee to take and pay
for the Shares not more than twelve (12) months after the date
of delivery of the subscription agreement.
9.3(g) such other consideration and method of payment for the issuance
of Shares to the extent permitted by Applicable Laws; or
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9.3(h) any combination of the foregoing methods of payment.
10. Exercise of Option.
10.1 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 12 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.
10.2 Termination of Employment. Upon termination of an Optionee's status as
an Employee or Consultant (other than as a result of the Optionee's
death or Disability), the Optionee may exercise his or her Option, but
only within thirty (30) days or such other period of time as is
determined by the Administrator and, unless determined otherwise by the
Administrator, only to the extent that the Optionee was entitled to
exercise it at the date of such termination (and in no event later than
the expiration of the term of such Option as set forth in the Option
Agreement). To the extent that Optionee was not entitled to exercise an
Option at the date of such termination, and to the extent that the
Optionee does not exercise such Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan. For
purposes of this Section 10(b), an Optionee's change in
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<PAGE> 7
status from Employee to Consultant or from Consultant to Employee shall
not, unless otherwise specified by the Administrator, be considered a
termination of status as an Employee or Consultant.
10.3 Disability of Optionee. Upon termination of an Optionee's status as an
Employee or Consultant as a result of the Optionee's Disability, the
Optionee may exercise his or her Option, but only within twelve (12)
months or such other time period as the Administrator shall specify
from the date of such termination, and, unless determined otherwise by
the Administrator, only to the extent that the Optionee was entitled to
exercise it at the date of such termination (and in no event later than
the expiration of the term of such Option as set forth in the Option
Agreement). To the extent that Optionee was not entitled to exercise an
Option at the date of such termination, and to the extent that the
Optionee does not exercise such Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
10.4 Death of Optionee. In the event of an Optionee's death, the Optionee's
estate or a person who acquired the right to exercise the deceased
Optionee's Option by bequest or inheritance may exercise the Option,
but only within twelve (12) months or such other time period as the
Administrator shall specify following the date of death, and, unless
determined otherwise by the Administrator, only to the extent that the
Optionee was entitled to exercise it at the date of death (and in no
event later than the expiration of the term of such Option as set forth
in the Option Agreement). To the extent that Optionee was not entitled
to exercise an Option at the date of death, and to the extent that the
Optionee's estate or a person who acquired the right to exercise such
Option does not exercise such Option (to the extent otherwise so
entitled) within the time specified herein, the Option shall terminate,
and the Shares covered by such Option shall revert to the Plan.
11. Non-Transferability of Options. An 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 and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
12. Adjustments Upon Changes in Capitalization, Dissolution, Merger or
Asset Sale.
12.1 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 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
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<PAGE> 8
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.
12.2 Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify each
Optionee at least fifteen (15) days prior to the effective date of such
proposed transaction. To the extent it has not been previously
exercised, an Option will terminate immediately prior to the
consummation of such proposed action.
12.3 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 will be assumed or an
equivalent option or right substituted by the successor corporation or
a Parent or Subsidiary of the successor corporation (the "Successor
Corporation"), unless the Successor Corporation refuses to assume or
substitute for the Option, in which case the Optionee shall have the
right to exercise the Option as to all of the Optioned Stock, including
Shares as to which it would not otherwise be exercisable. If an Option
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 shall be fully exercisable for a period of fifteen (15)
days from the date of such notice, and the Option shall terminate upon
the expiration of such period. For the purposes of this paragraph, the
Option shall be considered assumed if, following the merger or sale of
assets, the Option confers the right to purchase or receive, for each
Share of Optioned Stock subject to the Option 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 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, the Administrator may, with the consent of
the Successor Corporation, provide for the consideration to be received
upon the exercise of the Option for each Share of Optioned Stock
subject to the Option to be solely common stock of the Successor
Corporation equal in fair market value to the per share consideration
received by holders of Common Stock in the merger or sale of assets.
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<PAGE> 9
13. Date of Grant. The date of grant of an Option shall be, for all
purposes, the date on which the Administrator makes the determination
granting such Option, 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.
14. Withholding Taxes. In accordance with any applicable administrative
guidelines it establishes, the Administrator may allow a purchaser to
pay the amount of taxes required by law to be withheld as a result of a
purchase of Shares, by withholding from any payment of Common Stock due
as a result of such purchase, or by permitting the purchaser to deliver
to the Company, Shares having a Fair Market Value, as determined by the
Administrator, equal to the amount of such required withholding taxes.
15. Amendment and Termination of the Plan.
15.1 Amendment and Termination. The Board may at any time amend, alter,
suspend or terminate the Plan.
15.2 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.
16.1 Legal Compliance. 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 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.
16.2 Investment Representations. 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.
9
<PAGE> 10
17. Liability of Company. 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.
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.
10
<PAGE> 1
EXHIBIT 4.2
GEOWORKS
STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the
Supplemental Stock Option Plan (the "Plan") shall have the same defined meanings
in this Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
[Optionee's Name and Address]
You have been granted a Nonstatutory Stock Option to purchase
Common Stock of the Company, subject to the terms and conditions of the Plan and
this Option Agreement, as follows:
<TABLE>
<CAPTION>
<S> <C> <C>
Grant Number _________________________
Date of Grant _________________________
Vesting Commencement Date _________________________
Exercise Price per Share $________________________
Total Number of Shares Granted _________________________
Total Exercise Price $________________________
Type of Option: Nonstatutory Stock Option
Term/Expiration Date: _________________________
</TABLE>
Vesting Schedule:
This Option may be exercised, in whole or in part, in
accordance with the following schedule:
[25% of the Shares subject to the Option shall vest twelve
months after the Vesting Commencement Date, and 1/48 of the Shares subject to
the Option shall vest each month thereafter].
<PAGE> 2
Termination Period:
This Option may be exercised for 30 days after termination of
the Optionee's employment or consulting relationship with the Company. Upon the
death or disability (as defined in Section 22(a)(3) of the Code) of the
Optionee, this Option may be exercised for such longer period as provided in the
Plan. In the event of the Optionee's change in status from Employee to
Consultant or Consultant to Employee, this Option Agreement shall remain in
effect. In no event shall this Option be exercised later than the
Term/Expiration Date as provided above.
II. AGREEMENT
1. Grant of Option. The Administrator hereby grants to the
Optionee named in the Notice of Grant attached as Part I of this Agreement (the
"Optionee"), an option (the "Option") to purchase the number of Shares, as set
forth in the Notice of Grant, at the exercise price per share set forth in the
Notice of Grant (the "Exercise Price"), subject to the terms and conditions of
the Plan, which is incorporated herein by reference. Subject to Section 15.2 of
the Plan, in the event of a conflict between the terms and conditions of the
Plan and the terms and conditions of this Option Agreement, the terms and
conditions of the Plan shall prevail.
2. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during
its term in accordance with the Vesting Schedule set out in the Notice of
Grantand the applicable provisions of the Plan and this Option Agreement. In the
event of Optionee's death, disability or other termination of Optionee's
employment or consulting relationship, the exercisability of the Option is
governed by the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by
delivery of an exercise notice, in the form attached as Exhibit A (the "Exercise
Notice"), which shall state the election to exercise the Option, the number of
Shares in respect of which the Option is being exercised (the "Exercised
Shares"), and such other representations and agreements as may be required by
the Company pursuant to the provisions of the Plan. The Exercise Notice shall be
signed by the Optionee and shall be delivered in person or by certified mail to
the Secretary of the Company. The Exercise Notice shall be accompanied by
payment of the aggregate Exercise Price as to all Exercised Shares. This Option
shall be deemed to be exercised upon receipt by the Company of such fully
executed Exercise Notice accompanied by such aggregate Exercise Price.
No Shares shall be issued pursuant to the exercise of
this Option unless such issuance and exercise complies with all relevant
provisions of law and the requirements of any stock exchange or quotation
service upon which the Shares are then listed. Assuming such compliance, for
income tax purposes the Exercised Shares shall be considered transferred to the
Optionee on the date the Option is exercised with respect to such Exercised
Shares.
-2-
<PAGE> 3
3. Method of Payment. Payment of the aggregate Exercise Price
shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(a) cash;
(b) check; or
(c) delivery of a properly executed exercise notice
together with such other documentation as the Administrator and the Optionee's
broker (if applicable) may require in order for the Exercise Price to be paid
through proceeds from the sale of a portion of the shares issued upon such
exercise (or through a loan in anticipation of the receipt of such proceeds).
4. Non-Transferability of Option. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by the
Optionee. The terms of the Plan and this Option Agreement shall be binding upon
the executors, administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within
the term set out in the Notice of Grant, and may be exercised during such term
only in accordance with the Plan and the terms of this Option Agreement.
6. Tax Consequences. Some of the federal and California state
tax consequences relating to this Option, as of the date of this Option, are set
forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND
REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER
BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercising the Option. The Optionee may incur
regular federal income tax and California state income tax liability upon
exercise of a Nonstatutory Stock Option ("NSO"). The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates) equal
to the excess, if any, of the Fair Market Value of the Exercised Shares on the
date of exercise over their aggregate Exercise Price. If the Optionee is an
Employee or a former Employee, the Company will be required to withhold from his
or her compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation income
at the time of exercise, and may refuse to honor the exercise and refuse to
deliver Shares if such withholding amounts are not delivered at the time of
exercise.
(b) Disposition of Shares. If the Optionee holds NSO
Shares for at least one year, any gain realized on disposition of the Shares
over Fair Market Value of the Exercised Shares at time of exercise will be
treated as long-term capital gain for federal income tax purposes.
-3-
<PAGE> 4
7. Entire Agreement; Governing Law. The Plan is incorporated
herein by reference. The Plan and this Option Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
in their entirety all prior undertakings and agreements of the Company and
Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee. This agreement is governed by California law except for
that body of law pertaining to conflict of laws.
By your signature and the signature of the Company's
representative below, you and the Company agree that this Option is granted
under and governed by the terms and conditions of the Plan and this Option
Agreement. Optionee has reviewed the Plan and this Option Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Option Agreement and fully understands all provisions of the Plan
and Option Agreement. Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Option Agreement. Optionee further agrees to
notify the Company upon any change in the residence address indicated below.
OPTIONEE: GEOWORKS
____________________________________ By:____________________________________
Signature
____________________________________ Title:_________________________________
Print Name
- ------------------------------------
Residence Address
- ------------------------------------
-4-
<PAGE> 5
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby
approves the terms and conditions of the Plan and this Option Agreement. In
consideration of the Company's granting his or her spouse the right to purchase
Shares as set forth in the Plan and this Option Agreement, the undersigned
hereby agrees to be irrevocably bound by the terms and conditions of the Plan
and this Option Agreement and further agrees that any community property
interest shall be similarly bound. The undersigned hereby appoints the
undersigned's spouse as attorney-in-fact for the undersigned with respect to any
amendment or exercise of rights under the Plan or this Option Agreement.
---------------------------------------
Spouse of Optionee
-5-
<PAGE> 6
EXHIBIT A
SUPPLEMENTAL STOCK OPTION PLAN
EXERCISE NOTICE
Geoworks
960 Atlantic Avenue
Alameda, CA 94501
Attention: Corporate Secretary
1. Exercise of Option. Effective as of today,_________________
________________, 199__, the undersigned ("Purchaser") hereby elects to purchase
______________ shares (the "Shares") of the Common Stock of Geoworks (the
"Company") under and pursuant to the Supplemental Stock Option Plan (the "Plan")
and the Stock Option Agreement dated___________ , 19__ with Grant Number _____
(the "Option Agreement"). The purchase price for the Shares shall be $ , as
required by the Option Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the
Company the full purchase price for the Shares in the form of:
/ / Cash;
/ / Check; or
/ / Proceeds from the sale of a portion of the Shares (or a
loan in anticipation of the receipt of such proceeds), subject to such further
documentation and conditions as the Administrator and the Purchaser's broker (if
applicable) may require.
3. Representations of Purchaser. Purchaser acknowledges that
Purchaser has received, read and understood the Plan and the Option Agreement
and agrees to abide by and be bound by their terms and conditions.
4. Rights as Shareholder. 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 12.1 of the Plan.
<PAGE> 7
5. Tax Consultation. Purchaser understands that Purchaser may
suffer adverse tax consequences as a result of Purchaser's purchase or
disposition of the Shares. Purchaser represents that Purchaser has consulted
with any tax consultants Purchaser deems advisable in connection with the
purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option
Agreement are incorporated herein by reference. This Agreement, the Plan and the
Option Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings
and agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing signed by the Company and Purchaser. This agreement is
governed by California law except for that body of law pertaining to conflict of
laws.
Submitted by: Accepted by:
PURCHASER: GEOWORKS
__________________________________ By: _________________________________
Signature
__________________________________ Title: ________________________________
Print Name
Address: Address:
___________________________ 960 Atlantic Avenue
___________________________ Alameda, CA 94501
-2-
<PAGE> 1
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 415-493-9300 FACSIMILE 415-493-6811
July 31, 1996
Geoworks
960 Atlantic Avenue
Alameda, California 94501
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 August 1,
1996 (the "Registration Statement"), in connection with the registration under
the Securities Act of 1933, as amended, of 550,000 shares of your Common Stock
(the "Shares") reserved for issuance under the Supplemental Stock Option Plan
(the "Plan"). As your legal counsel, we have examined the proceedings taken and
proposed to be taken in connection with the issuance, sale and payment of
consideration for the Shares to be issued under the Plan.
It is our opinion that, when issued and sold in compliance
with applicable prospectus delivery requirements and in the manner referred to
in the Plan and pursuant to the agreement which accompanies the Plan, the Shares
will be legally and validly issued, fully paid and non-assessable.
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 amendments thereto.
Sincerely,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
