<PAGE>
As filed with the Securities and Exchange Commission on April 14, 1997
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
UNISON SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2696878
(State of incorporation) (I.R.S. Employer Identification No.)
5101 Patrick Henry Drive
Santa Clara, California 95054
(Address, including zip code, of principal executive offices)
-----------------------
1995 STOCK OPTION PLAN
EXECUTIVE STOCK OPTION AGREEMENT
(Full Title of the Plans)
-----------------------
RICHARD J. ARMITAGE
Chief Financial Officer
UNISON SOFTWARE, INC.
5101 Patrick Henry Drive
Santa Clara, California 95054
(Name and address of agent for service)
(408) 988-2800
(Telephone number, including area code, of agent for service)
-----------------------
Copies to:
HERBERT P. FOCKLER, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Offering Maximum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 1,442,640 $6.22 $8,966,886.875 $2,717.24
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the prospectus delivered to participants under the
registrant's 1995 Stock Option Plan (the "Plan") also relates to 450,000
shares (giving effect to a 3-for-2 stock split effective January 2,
1997) initially registered under registration statement on Form S-8 No.
33-80903.
(2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
"Securities Act"), and, in part, pursuant to Rule 457(c) under the
Securities Act. With respect to (i) 391,750 shares which are subject to
outstanding options to purchase Common Stock under the Plan as of March 24,
1997 and (ii) 242,640 shares which are subject to outstanding options to
purchase Common Stock under an Executive Stock Option Agreement, as amended
(the "Agreement"), the Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(h), under which Rule the per share price of
options to purchase stock under an employee stock option plan may be
estimated by reference to the exercise price of such options. The weighted
average exercise price of the 391,750 shares subject to outstanding options
under the Plan is $7.49 and the exercise price of the 242,640 shares
subject to outstanding options under the Agreement is $6.75. With respect
to 808,250 shares of Common Stock available for future grant under the Plan
as of March 24, 1997, the Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(c) under which Rule the per share price was
determined by reference to the average of the high and low price reported
in the Nasdaq National Market on April 9, 1997, which average was
$5.4375. The number referenced above in the table entitled "Proposed
Maximum Offering Price per Share" represents a weighted average of the
foregoing estimates calculated in accordance with Rules 457(h) and 457(c).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
May 31, 1996, filed pursuant to Section 13 of the Securities Exchange Act of
1934 (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the quarters ended
August 31, 1996 and November 30, 1996 filed pursuant to Section 13 of the
Exchange Act.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement filed pursuant to the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment 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 such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for the Company, Wilson, Sonsini, Goodrich & Rosati, P.C., 650 Page
Mill Road, Palo Alto, California 94304, has rendered and opinion to the effect
that the Common Stock offered hereby will, when issued in accordance with the
Company's 1995 Stock Option Plan and the Executive Stock Option Agreement, as
amended, be legally and validly issued, fully paid and nonassessable. Jeffrey
D. Saper, a member of Wilson Sonsini Goodrich & Rosati, P.C., is a director of
the Company. As of March 25, 1997, Mr. Saper, together with investment
partnerships of Wilson Sonsini Goodrich & Rosati, P.C., owns 111,750 shares of
the Common Stock of the Company and holds options to purchase an additional
22,500 shares of the Common Stock of the Company.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors, employees and other corporate agents
in terms sufficiently broad to indemnify such persons under certain
circumstances for liabilities (including reimbursements for expenses
incurred) arising under the Act. Article VII of the Registrant's Certificate
of Incorporation and Article VI of the Registrant's Bylaws provide for
indemnification of the Registrant's directors, officer, employees and other
agents to the extent and under the circumstances permitted by the Delaware
General Corporation Law.
The Registrant has entered into an indemnification agreement with each
of its directors and officers and maintains insurance for the benefit of its
directors and officers insuring such persons against certain liabilities,
including liabilities under the securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4.1 1995 Stock Option Plan, as amended.
4.2* Forms of stock option agreements used under the 1995 Stock Option
Plan.
4.3 Executive Stock Option Agreement, as amended.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to legality of
securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (See Pages II-4 and II-5)
___________
* Incorporated by reference to exhibits filed with the Registrant's
registration statement on Form S-1 (File No. 33-92748), which was
declared effective by the Commission on July 20, 1995.
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 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.
(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 Santa Clara, State of California,
on April 9, 1997.
UNISON SOFTWARE, INC.
By: /s/ Don H. Lee
--------------------------------------
Don H. Lee, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Don H. Lee and Richard J. Armitage,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him 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 each of said
attorney-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
II-4
<PAGE>
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.
SIGNATURE TITLE DATE
- ------------------- ----------------------- --------------------
/s/ Don H. Lee Chief Executive Officer April 9, 1997
- ------------------- and Director (Principal
(Don H. Lee) Executive Officer)
/s/ Dominic Gattuso, Jr. President, Chief Operating April 9, 1997
- ------------------- Officer and Director
(Dominic Gattuso, Jr.)
/s/ Richard J. Armitage Vice President, Finance, April 9, 1997
- ------------------- Chief Financial Officer and
(Richard J. Armitage) Treasurer (Principal Financial
and Accounting Officer)
/s/ Michael A. Casteel Executive Vice President, April 9, 1997
- ------------------- Chief Technology Officer,
(Michael A. Casteel) Secretary and Director
Director
- -------------------
(Jeffrey D. Saper)
/s/ Donald R. Dixon Director April 9, 1997
- -------------------
(Donald R. Dixon)
/s/ Kenneth A. Goldman Director April 9, 1997
- -------------------
(Kenneth A. Goldman)
II-5
<PAGE>
UNISON SOFTWARE, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 1995 Stock Option Plan, as amended.
4.2* Forms of stock option agreements used under the 1995 Stock
Option Plan.
4.3 Executive Stock Option Agreement, as amended.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (See Pages II-4 and II-5).
- -------------------------
* Incorporated by reference to exhibits filed with the Registrant's
registration statement on Form S-1 (File No. 33-92748), which was declared
effective by the Commission on July 20, 1995.
II-6
<PAGE>
UNISON SOFTWARE, INC.
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 Employees and
Consultants of the Company and its Subsidiaries and to promote the success of
the Company's business. Options granted under the Plan may be Incentive
Stock Options (as defined under Section 422 of the Code) or Nonstatutory
Stock Options, as determined by the Administrator at the time of grant of an
option and subject to the applicable provisions of Section 422 of the Code,
as amended, and the regulations promulgated thereunder. 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
appointed pursuant to Section 4 of the Plan.
(b) "APPLICABLE LAWS" means the requirements relating to the
administration of stock option plans under U. S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws
of any foreign country or jurisdiction where Options or Stock Purchase Rights
are, or will be, granted under the Plan.
(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 of Directors appointed by the
Board of Directors to administer the Plan in accordance with Section 4 of the
Plan.
(f) "COMMON STOCK" means the Common Stock of the Company.
(g) "COMPANY" means Unison Software, Inc., a Delaware corporation.
(h) "CONSULTANT" means any person who is engaged by the Company or
any Parent or Subsidiary to render consulting or advisory services. The term
Consultant shall include 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
<PAGE>
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 90 days, unless
reemployment upon expiration of such leave is guaranteed by statute or
contract, including Company policies. If reemployment upon expiration of a
leave of absence approved by the Company is not so guaranteed, on the 91st
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) "EMPLOYEE" means 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 to
constitute "employment" by the Company.
(l) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(m) "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, its Fair Market Value shall be 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;
(ii) If the Common Stock is quoted on the NASDAQ System (but
not on the Nasdaq 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 high bid and low asked prices for
the Common Stock on the last market trading day prior to the day of
determination, 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.
(n) "INCENTIVE STOCK OPTION" means an Option intended to qualify
as an incentive stock option within the meaning of Section 422 of the Code.
(o) "NONSTATUTORY STOCK OPTION" means an Option not intended to
qualify as an Incentive Stock Option.
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<PAGE>
(p) "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.
(q) "OPTION" means a stock option granted pursuant to the Plan.
(r) "OPTION AGREEMENT" means an 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.
(s) "OPTIONED STOCK" means the Common Stock subject to an Option
or a Stock Purchase Right.
(t) "OPTIONEE" means an Employee or Consultant who receives an
Option or Stock Purchase Right.
(u) "PARENT" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(v) "PLAN" means this 1995 Stock Option Plan.
(w) "RESTRICTED STOCK" means shares of Common Stock acquired
pursuant to a grant of a Stock Purchase Right under Section 18 below.
(x) "RULE 16b-3" means Rule 16b-3 of the Exchange Act or any
successor to Rule 16b-3.
(y) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 11 below.
(z) "STOCK PURCHASE RIGHT" means a right to purchase Common Stock
pursuant to Section 18 below.
(aa) "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 11
of the Plan, the maximum aggregate number of Shares which may be optioned and
sold under the Plan is 1,650,000 Shares. 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
-3-
<PAGE>
the Plan (unless the Plan has terminated); PROVIDED, however, that Shares
that have actually been issued under the Plan, upon exercise of either an
Option or Stock Purchase Right, shall not be returned to the Plan and shall
not become available for future distribution under the Plan, except that if
unvested Shares of Restricted Stock are repurchased by the Company at their
original purchase price, such Shares shall become available for future grant
under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE.
(i) MULTIPLE ADMINISTRATIVE BODIES. The Plan may be
administered by different Committees with respect to different groups of
Optionees.
(ii) SECTION 162(m). To the extent that the Administrator
determines it to be desirable to qualify Options granted hereunder as
"performance-based compensation" within the meaning of Section 162(m) of the
Code, the Plan shall be administered by a Committee of two or more "outside
directors" within the meaning of Section 162(m) of the Code.
(iii) RULE 16b-3. To the extent desirable to qualify
transactions hereunder as exempt under Rule 16b-3, the transactions
contemplated hereunder shall be structured to satisfy the requirements for
exemption under Rule 16b-3.
(iv) OTHER ADMINISTRATION. Other than as provided above, the
Plan shall be administered by (A) the Board or (B) a Committee, which
committee shall be constituted to satisfy Applicable Laws.
(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, and subject to the approval of any relevant
authorities, including the approval, if required, of any stock exchange upon
which the Common Stock is listed, the Administrator shall have the authority,
in its discretion:
(i) to determine the Fair Market Value of the Common Stock;
(ii) to select the Consultants and Employees to whom Options
and Stock Purchase Rights may from time to time 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 to be covered by each
such award granted hereunder;
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<PAGE>
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions of any award
granted hereunder;
(vii) to determine whether and under what circumstances an
Option may be settled in cash under Section 9(e) instead of Common Stock;
(viii) 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;
(ix) 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 has declined since the date the Option was granted;
(x) to allow Optionees to satisfy withholding tax obligations
by electing to have the Company withhold from the Shares to be issued upon
exercise of an Option or Stock Purchase Right that number of Shares having a
Fair Market Value equal to the amount required to be withheld. 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. All elections by
an Optionee to have Shares withheld for this purpose shall be made in such
form and under such conditions as the Administrator may deem necessary or
advisable; and
(xi) to construe and interpret the terms of the Plan and
awards granted pursuant to the Plan.
(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 or Stock
Purchase Rights.
5. ELIGIBILITY.
(a) Nonstatutory Stock Options and Stock Purchase Rights may be
granted to Employees and Consultants. Incentive Stock Options may be granted
only to Employees. An Employee or Consultant who has been granted an Option
or Stock Purchase Right may, if otherwise eligible, be granted additional
Options or Stock Purchase Rights.
(b) 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:
-5-
<PAGE>
(i) of Shares subject to an Optionee's Incentive Stock
Options granted by the Company, any Parent or Subsidiary, which
(ii) become exercisable for the first time 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) Neither the Plan nor any Option or Stock Purchase Right shall
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.
(d) The following limitations shall apply to grants of Options to
Employees:
(i) No Employee shall be granted, in any fiscal year of the
Company, Options to purchase more than 250,000 Shares.
(ii) In connection with his or her initial service, an
Employee may be granted options to purchase up to an additional 250,000
Shares which shall not count against the limit set forth in subsection (i)
above.
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization
as described in Section 11.
(iv) If an Option 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 11), the canceled Option will be counted against the
limit set forth in Section 5(d)(i). For this purpose, if the exercise price
of an Option is reduced, the transaction will be treated as a cancellation
of the Option and the grant of a new Option.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company, as described in Section 17 of the Plan. It
shall continue in effect for a term of ten (10) years unless sooner
terminated under Section 13 of the Plan.
7. TERM OF OPTION. The term of each Option shall be the term stated
in the Option Agreement; provided, however, that the term shall be no more
than ten (10) years from the date of grant thereof. However, in the case of
an Incentive Stock Option granted to an Optionee who, at the
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<PAGE>
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. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) 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
Board, 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 Employee other than an Employee
described in the preceding paragraph, 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. In the case of a
Nonstatutory Stock Option intended to qualify as "performance-based
compensation" within the meaning of Section 162(m) of the Code, the per Share
exercise price shall be no less than 100% of the Fair Market Value per Share
on the date of grant.
(iii) Notwithstanding the foregoing, Options may be granted
with a per Share exercise price of less than 100% of the Fair Market Value
per Share on the date of grant pursuant to a merger or other corporate
transaction.
(b) 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 which (x) 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 (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) 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, (6) a reduction in the amount of any Company
liability to the Optionee, including any liability attributable to the
Optionee's participation
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<PAGE>
in any Company-sponsored deferred compensation program or arrangement, or (7)
any combination of the foregoing methods of payment. In making its
determination as to the type of consideration to accept, the Board shall
consider if acceptance of such consideration may be reasonably expected to
benefit the Company.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. Any Option
granted hereunder shall be exercisable at such times and under such
conditions as determined by the Board, including performance criteria with
respect to the Company and/or the Optionee, and as shall be permissible under
the terms of the Plan. Unless the Administrator provides otherwise, vesting
of Options granted hereunder shall be tolled during any unpaid leave of
absence.
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 Board,
consist of any consideration and method of payment allowable under Section
8(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 Shares, no right to vote or receive dividends or any other
rights as a stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. The Company shall issue (or
cause to be issued) such Shares 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 Shares are 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.
(b) TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP. In the
event of termination of an Optionee's Continuous Status as an Employee or
Consultant with the Company (but not in the event of an Optionee's change of
status from Employee to Consultant (in which case an Employee's Incentive
Stock Option shall automatically convert to a Nonstatutory Stock Option on
the ninety-first (91st) day following such change of status) or from
Consultant to Employee), such Optionee may, but only within such period of
time as is determined by the Administrator, with such determination in the
case of an Incentive Stock Option not exceeding three (3) months after the
date of such termination (but in no event later than the expiration date of
the term of such Option as set forth in the Option Agreement), exercise his
or her Option to the extent that Optionee was entitled to exercise it at the
date of such termination. To the extent that Optionee was not entitled to
exercise
-8-
<PAGE>
the Option at the date of such termination, or if Optionee does not exercise
such Option to the extent so entitled within the time specified herein, the
Option shall terminate.
(c) DISABILITY OF OPTIONEE. In the event of termination of an
Optionee's consulting relationship or Continuous Status as an Employee as a
result of his or her disability (as such term is defined in Section 22(e)(3)
of the Code), Optionee may, but only within twelve (12) months from the date
of such termination (and in no event later than the expiration date of the
term of such Option as set forth in the Option Agreement), exercise the
Option to the extent otherwise entitled to exercise it at the date of such
termination. To the extent that Optionee is not entitled to exercise the
Option at the date of termination, or if Optionee does not exercise such
Option to the extent so entitled 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) BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
10. NON-TRANSFERABILITY OF OPTIONS AND STOCK PURCHASE RIGHTS. Unless
otherwise specified by the Administrator, Options and Stock Purchase Rights
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. If the Administrator makes an Option or Stock Purchase Right
transferable, such Option or Stock Purchase Right shall contain such
additional terms and conditions as the Administrator deems appropriate.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by
the stockholders of the Company, the number of shares of Common Stock covered
by each outstanding Option or 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
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<PAGE>
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, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option or Stock Purchase
Right will terminate immediately prior to the consummation of such proposed
action.
(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 shall be substituted by the
successor corporation or a Parent or Subsidiary of the successor corporation.
If the outstanding Options and Stock Purchase Rights are not assumed or
substituted in accordance with the preceding sentence, the Administrator
shall provide for all Options to vest and for the Optionee to have the right
to exercise the Option or Stock Purchase Right as to all of the Optioned
Stock, including Shares as to which such Option or Stock Purchase Right would
not otherwise be exercisable, unless the Administrator, in its discretion,
provides otherwise. If the exercisability of an Option or Stock Purchase
Right is accelerated pursuant to the preceding sentence, the Administrator
shall notify the Optionee that the Option or Stock Purchase Right shall be
fully vested and exercisable for a period of fifteen (15) days from the date
of such notice, and the Option or Stock Purchase Right will 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 Stock Purchase Right confers the
right to purchase, 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 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
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<PAGE>
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.
12. TIME OF GRANTING OPTIONS AND STOCK PURCHASE RIGHTS. The date of
grant of an Option or Stock Purchase Right shall, for all purposes, be the
date on which the Administrator makes the determination granting such Option
or Stock Purchase Right, or such other date as is determined by the Board.
Notice of the determination shall be given to each Employee or Consultant to
whom an Option or Stock Purchase Right 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 at any time amend,
alter, suspend or discontinue the Plan, but no amendment, alteration,
suspension or discontinuation shall be made which would impair the rights of
any Optionee under any grant theretofore made, without his or her consent.
In addition, to the extent necessary and desirable to comply with Section 422
of the Code or any other Applicable Laws, the Company shall obtain
stockholder approval of any Plan amendment in such a manner and to such a
degree as required.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Plan shall not affect Options or Stock Purchase Rights
already granted, and such Options and Stock Purchase Rights 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 or Stock Purchase Right unless the
exercise of such Option or Stock Purchase Right and the issuance and delivery
of such Shares pursuant thereto shall comply with all Applicable Laws, 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 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 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.
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<PAGE>
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.
16. AGREEMENTS. Options and Stock Purchase Rights shall be evidenced
by written agreements in such form as the Board shall approve from time to
time.
17. STOCKHOLDER APPROVAL. 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
degree and manner required under Applicable Laws.
18. 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) 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.
(d) RIGHTS AS A STOCKHOLDER. Once the Stock Purchase Right is
exercised, the purchaser shall have the rights equivalent to those of a
stockholder, and shall be a stockholder when his or her purchase is entered
upon the records of the duly authorized transfer agent of the Company.
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<PAGE>
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.
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<PAGE>
UNISON SOFTWARE, INC.
EXECUTIVE STOCK OPTION AGREEMENT
This Executive Stock Option Agreement is entered into between Dominic
Gattuso, Jr. ("Optionee") and Unison Software, Inc. (the "Company") as of
August 19, 1996.
1. GRANT OF OPTION.
Optionee has been granted a nonstatutory stock option (the "Option") to
purchase Common Stock of the Company, subject to the terms and conditions of
this Option Agreement, as follows:
Date of Grant August 16, 1996
Vesting Commencement Date August 19, 1996
Exercise Price per Share $19.00
Total Number of Shares Granted 161,760
Total Exercise Price $3,073,440.00
Term/Expiration Date: August 16, 2006
2. EXERCISE OF OPTION.
a. IN GENERAL. This Option may be exercised, in whole or in
part, in accordance with the following schedule:
Subject to the following paragraphs, 25% of the shares
subject to the Option (the "Shares") shall vest twelve
months after the Vesting Commencement Date, and
25% of the Shares shall vest each year thereafter.
b. CHANGE OF CONTROL.
(1) Subject to paragraph (c) below, in the event of a Change
of Control (defined below), the vesting and exercisability of the unvested
portion, if any, of the Option shall automatically accelerate according to
the following schedule:
<PAGE>
(a) If the Change of Control occurs prior to August 19,
1997, 50% of the then unvested Shares shall thereupon become vested and
exercisable.
(b) If the Change of Control occurs on or after August
19, 1997, all of the unvested Shares shall thereupon become vested and
exercisable.
(2) For purposes of this Agreement, the term "Change of
Control" shall mean the occurrence of any of the following events:
(a) Any "person," as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (other than the Company, a
Company subsidiary or a Company employee benefit plan, including any trustee
of such a plan acting as trustee), becoming the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than fifty percent (50%) of the
combined voting power of the Company's then-outstanding securities entitled
to vote generally in the election of directors; or
(b) The consummation of a merger or consolidation of the
Company with or into any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(c) The consummation of a sale or disposition by the
Company of all or substantially all the Company's assets.
(3) CERTAIN BUSINESS COMBINATIONS. In the event that (i) it
is determined by the Board of Directors, upon receipt of a written opinion of
the Company's independent public accountants, that the enforcement of the
foregoing paragraphs would preclude accounting for any proposed business
combination of the Company involving a Change of Control as a pooling of
interests, and (ii) it is also determined by the Board that such accounting
treatment for such a proposed business combination would be in the best
interests of the Company's stockholders, such paragraphs shall be null and
void.
c. 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. 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.
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<PAGE>
d. TERMINATION OF EMPLOYMENT OR CONSULTING RELATIONSHIP. In the
event of termination of the Optionee's Continuous Status as an Employee or
Consultant with the Company (but not in the event of the Optionee's change of
status from Employee to Consultant or from Consultant to Employee), the
Optionee may, but only within thirty (30) days (and in no event later than
the expiration date of the term of the Option), exercise the Option to the
extent that Optionee 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 to the extent so entitled within the time specified
herein, the Option shall terminate.
e. DISABILITY OF OPTIONEE. In the event of termination of the
Optionee's Continuous Status as an Employee or Consultant as a result of his
or her disability, the Optionee may, but only within twelve (12) months from
the date of such termination (and in no event later than the expiration date
of the term of the Option), exercise the Option to the extent otherwise
entitled to exercise it at the date of such termination. To the extent that
the Optionee is not entitled to exercise the Option at the date of
termination, or if the Optionee does not exercise such Option to the extent
so entitled within the time specified herein, the Option shall terminate.
f. DEATH OF OPTIONEE. In the event of the death of the 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
the Option), 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. After
death, to the extent that the Optionee's estate or a person who acquired the
right to exercise the Option by bequest or inheritance is not entitled to
exercise the Option at the date of termination, or such person does not
exercise the Option to the extent so entitled within the time specified
herein, the Option shall terminate.
g. DEFINITIONS.
(1) For purposes of this Option Agreement "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.
(2) For purposes of this Option Agreement "EMPLOYEE" means a
person, including an officer or director, 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 to constitute "employment" by the Company.
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<PAGE>
(3) For purposes of this Option Agreement "CONSULTANT" means
any person who is engaged by the Company or any parent or subsidiary to
render consulting or advisory services and is compensated for such services.
The term Consultant shall not include directors who are not compensated for
their services or are paid only a director's fee by the Company.
h. COMPLIANCE WITH LAWS, ETC. 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.
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; or
(b) check; or
(c) delivery of a properly executed exercise notice together with
such other documentation as the Company and a 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; or
(d) surrender of other Shares which (i) in the case of Shares
acquired upon exercise of an option, have been owned by the Optionee for more
than six (6) months on the date of surrender, AND (ii) have a Fair Market
Value on the date of surrender equal to the aggregate Exercise Price of the
Exercised Shares; or
(e) delivery of Optionee's promissory note (the "Note") in the
form attached hereto as Exhibit C, in the amount of the aggregate Exercise
Price of the Exercised Shares together with the execution and delivery by the
Optionee of the Security Agreement attached hereto as Exhibit B. The Note
shall bear interest at a rate no less than the "applicable federal rate"
prescribed under the Code and its regulations at time of purchase, and shall
be secured by a pledge of the Shares purchased by the Note pursuant to the
Security Agreement.
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 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 Section 1, and may be exercised during such term only in
accordance with the terms of this Option Agreement.
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<PAGE>
6. TAX CONSEQUENCES. Some of the federal and California 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 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 will be
treated as long-term capital gain for federal income tax purposes.
7. ADMINISTRATION. Subject to the approval of any relevant
authorities, including the approval, if required, of any stock exchange upon
which the Common Stock is listed, the administrator shall have the authority,
in its discretion, to construe and interpret the terms of this Agreement,
including to reduce the Exercise Price to the then current fair market value
of the Common Stock, if such fair market value has declined since the date
the Option was granted, and to determine whether and under what circumstances
an Option may be settled in cash under Section 8 hereof instead of Common
Stock.
8. BUYOUT PROVISIONS. The administrator of this Agreement may at any
time offer to buy out this Option for a payment in cash or Shares, based on
such terms and conditions as the admini-strator, in its sole discretion,
shall establish and communicate to the Optionee at the time that such offer
is made.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) CHANGES IN CAPITALIZATION. The number of Shares, as well as
the price per Share, 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 of directors of the Company, 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
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<PAGE>
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.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, Optionee shall have the right to
exercise the Option until fifteen (15) days prior to such transaction as to
all of the Shares. To the extent it has not been previously exercised, the
Option will terminate immediately prior to the consummation of such proposed
action.
(c) MERGER OR ASSET SALE. Subject to Section 2, 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, the Option shall be assumed
or an equivalent option shall be substituted by the successor corporation, or
a parent or subsidiary of such successor corporation. In the event that the
successor corporation, or a parent or subsidiary of such successor
corporation, does not agree to assume the Option or to substitute an
equivalent option, the Option shall terminate as of the date of the closing
of such transaction.
10. ENTIRE AGREEMENT; GOVERNING LAW. This Option Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and supersedes in its 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 Delaware
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 this Option Agreement. Optionee has
reviewed this Option Agreement in its entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option Agreement and
fully understands all provisions of the Option Agreement. Optionee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Company's Board of Directors upon any questions
relating to the Option Agreement. Optionee further agrees to notify the
Company upon any change in the residence address indicated below.
OPTIONEE: UNISON SOFTWARE, INC.
Dominic Gattuso
By: /s/ Don H. Lee
- ---------------------------------------- --------------------------------
Title: Chief Executive Officer
- --------------------------------------- -----------------------------
/s/ Dominic Gattuso
- ---------------------------------------
Signature
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<PAGE>
CONSENT OF SPOUSE
The undersigned spouse of Optionee has read and hereby approves the
terms and conditions of this Option Agreement. In consideration of the
Company's granting his or her spouse the right to purchase Shares as set
forth in this Option Agreement, the undersigned hereby agrees to be
irrevocably bound by the terms and conditions of the 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
this Option Agreement.
------------------------------------------
Spouse of Optionee
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<PAGE>
EXHIBIT A
UNISON SOFTWARE, INC.
EXECUTIVE STOCK OPTION AGREEMENT
EXERCISE NOTICE
Unison Software, Inc.
5101 Patrick Henry Drive
Santa Clara, California 95054
Attention: 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 Unison Software, Inc. (the
"Company") under and pursuant to the Executive Stock Option Agreement dated
August ___, 1996 (the "Option Agreement"). The purchase price for the Shares
shall be $________ per share, as required by the Option Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company
the full purchase price for the Shares.
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that
Purchaser has received, read and understood the Option Agreement and agrees
to abide by and be bound by their terms and conditions.
4. RIGHTS AS STOCKHOLDER. 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
stockholder 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 9 of the Option Agreement.
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.
<PAGE>
6. ENTIRE AGREEMENT; GOVERNING LAW. The Option Agreement is
incorporated herein by reference. This Exercise Notice 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 Delaware law except for that body of law pertaining
to conflict of laws.
Submitted by: Accepted by:
PURCHASER: UNISON SOFTWARE, INC.
Dominic Gattuso
By:
- ------------------------------- ------------------------------------
Its:
- ------------------------------- ------------------------------------
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Signature
Address:
5101 Patrick Henry Drive
Santa Clara, CA 95054
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<PAGE>
EXHIBIT B
SECURITY AGREEMENT
This Security Agreement is made as of __________, 19___ between Unison
Software, Inc., a Delaware corporation ("Pledgee"), and
_________________________ ("Pledgor").
RECITALS
Pursuant to Pledgor's election to purchase Shares under the Option
Agreement dated ________________ (the "Option Agreement"), between Pledgor
and Pledgee, and Pledgor's election under the terms of the Option Agreement
to pay for such shares with his promissory note (the "Note"), Pledgor has
purchased _________ shares of Pledgee's Common Stock (the "Shares") at a
price of $________ per share, for a total purchase price of $__________. The
Note and the obligations thereunder are as set forth in Exhibit C to the
Option Agreement.
NOW, THEREFORE, it is agreed as follows:
1. CREATION AND DESCRIPTION OF SECURITY INTEREST. In consideration of
the transfer of the Shares to Pledgor under the Option Agreement, Pledgor,
pursuant to the Delaware Commercial Code, hereby pledges all of such Shares
(herein sometimes referred to as the "Collateral") represented by certificate
number ______, duly endorsed in blank or with executed stock powers, and
herewith delivers said certificate to the Secretary of Pledgee
("Pledgeholder"), who shall hold said certificate subject to the terms and
conditions of this Security Agreement.
The pledged stock (together with an executed blank stock assignment for
use in transferring all or a portion of the Shares to Pledgee if, as and when
required pursuant to this Security Agreement) shall be held by the
Pledgeholder as security for the repayment of the Note, and any extensions or
renewals thereof, to be executed by Pledgor pursuant to the terms of the
Option, and the Pledgeholder shall not encumber or dispose of such Shares
except in accordance with the provisions of this Security Agreement.
2. PLEDGOR'S REPRESENTATIONS AND COVENANTS. To induce Pledgee to
enter into this Security Agreement, Pledgor represents and covenants to
Pledgee, its successors and assigns, as follows:
a. PAYMENT OF INDEBTEDNESS. Pledgor will pay the principal sum
of the Note secured hereby, together with interest thereon, at the time and
in the manner provided in the Note.
b. ENCUMBRANCES. The Shares are free of all other encumbrances,
defenses and liens, and Pledgor will not further encumber the Shares without
the prior written consent of Pledgee.
<PAGE>
c. MARGIN REGULATIONS. In the event that Pledgee's Common Stock
is now or later becomes margin-listed by the Federal Reserve Board and
Pledgee is classified as a "lender" within the meaning of the regulations
under Part 207 of Title 12 of the Code of Federal Regulations ("Regulation
G"), Pledgor agrees to cooperate with Pledgee in making any amendments to the
Note or providing any additional collateral as may be necessary to comply
with such regulations.
3. VOTING RIGHTS. During the term of this pledge and so long as all
payments of principal and interest are made as they become due under the
terms of the Note, Pledgor shall have the right to vote all of the Shares
pledged hereunder.
4. STOCK ADJUSTMENTS. In the event that during the term of the pledge
any stock dividend, reclassification, readjustment or other changes are
declared or made in the capital structure of Pledgee, all new, substituted
and additional shares or other securities issued by reason of any such change
shall be delivered to and held by the Pledgee under the terms of this
Security Agreement in the same manner as the Shares originally pledged
hereunder. In the event of substitution of such securities, Pledgor,
Pledgee and Pledgeholder shall cooperate and execute such documents as are
reasonable so as to provide for the substitution of such Collateral and, upon
such substitution, references to "Shares" in this Security Agreement shall
include the substituted shares of capital stock of Pledgor as a result
thereof.
5. OPTIONS AND RIGHTS. In the event that, during the term of this
pledge, subscription options or other rights shall be issued in connection
with the pledged Shares, such rights and options shall be the property of
Pledgor and, if exercised by Pledgor, all new stock or other securities so
acquired by Pledgor as it relates to the pledged Shares then held by
Pledgeholder shall be immediately delivered to Pledgeholder, to be held under
the terms of this Security Agreement in the same manner as the Shares pledged.
6. DEFAULT. Pledgor shall be deemed to be in default of the Note and
of this Security Agreement in the event:
a. Payment of principal or interest on the Note shall be
delinquent for a period of 10 days or more; or
b. Pledgor fails to perform any of the covenants set forth in the
Option Agreement or contained in this Security Agreement for a period of 10
days after written notice thereof from Pledgee.
In the case of an event of Default, as set forth above, Pledgee shall have
the right to accelerate payment of the Note upon notice to Pledgor, and
Pledgee shall thereafter be entitled to pursue its remedies under the
Delaware Commercial Code.
7. RELEASE OF COLLATERAL. Subject to any applicable contrary rules
under Regulation G, there shall be released from this pledge a portion of the
pledged Shares held by Pledgeholder hereunder upon payments of the principal
of the Note. The number of the pledged Shares which shall be
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<PAGE>
released shall be that number of full Shares which bears the same proportion
to the initial number of Shares pledged hereunder as the payment of principal
bears to the initial full principal amount of the Note.
8. WITHDRAWAL OR SUBSTITUTION OF COLLATERAL. Pledgor shall not sell,
withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
9. TERM. The within pledge of Shares shall continue until the payment
of all indebtedness secured hereby, at which time the remaining pledged stock
shall be promptly delivered to Pledgor, subject to the provisions for prior
release of a portion of the Collateral as provided in paragraph 7 above.
10. INSOLVENCY. Pledgor agrees that if a bankruptcy or insolvency
proceeding is instituted by or against it, or if a receiver is appointed for
the property of Pledgor, or if Pledgor makes an assignment for the benefit of
creditors, the entire amount unpaid on the Note shall become immediately due
and payable, and Pledgee may proceed as provided in the case of default.
11. PLEDGEHOLDER LIABILITY. In the absence of willful or gross
negligence, Pledgeholder shall not be liable to any party for any of his
acts, or omissions to act, as Pledgeholder.
12. INVALIDITY OF PARTICULAR PROVISIONS. Pledgor and Pledgee agree
that the enforceability or invalidity of any provision or provisions of this
Security Agreement shall not render any other provision or provisions herein
contained unenforceable or invalid.
13. SUCCESSORS OR ASSIGNS. Pledgor and Pledgee agree that all of the
terms of this Security Agreement shall be binding on their respective
successors and assigns, and that the term "Pledgor" and the term "Pledgee" as
used herein shall be deemed to include, for all purposes, the respective
designees, successors, assigns, heirs, executors and administrators.
14. GOVERNING LAW. This Security Agreement shall be interpreted and
governed under the laws of the State of Delaware, except for that body of law
pertaining to conflicts of laws.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
"PLEDGOR"
By:
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Print Name
--------------------------------
Address:
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"PLEDGEE" UNISON SOFTWARE, INC.,
a Delaware corporation
By:
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Title:
------------------------------------
"PLEDGEHOLDER"
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Secretary of Unison Software, Inc.
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<PAGE>
EXHIBIT C
NOTE
$_______________ Santa Clara, California
______________, 19___
FOR VALUE RECEIVED, _______________ promises to pay to Unison Software,
Inc., a Delaware corporation (the "Company"), or order, the principal sum of
_______________________ ($_____________), together with interest on the
unpaid principal hereof from the date hereof at the rate of _______________
percent (____%) per annum, compounded semiannually.
Principal and interest shall be due and payable on __________, 19___.
Should the undersigned fail to make full payment of principal or interest for
a period of 10 days or more after the due date thereof, the whole unpaid
balance on this Note of principal and interest shall become immediately due
at the option of the holder of this Note. Payments of principal and interest
shall be made in lawful money of the United States of America.
The undersigned may at any time prepay all or any portion of the
principal or interest owing hereunder.
This Note is subject to the terms of an Option Agreement, dated as of
______________. This Note is secured in part by a pledge of the Company's
Common Stock under the terms of a Security Agreement of even date herewith
and is subject to all the provisions thereof.
The holder of this Note shall have full recourse against the
undersigned, and shall not be required to proceed against the collateral
securing this Note in the event of default.
In the event the undersigned shall cease to be an employee or consultant
of the Company for any reason, the maturity of this Note shall, at the option
of the Company, be accelerated, and the whole unpaid balance on this Note of
principal and accrued interest shall be immediately due and payable.
Should any action be instituted for the collection of this Note, the
reasonable costs and attorneys' fees therein of the holder shall be paid by
the undersigned.
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<PAGE>
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, _______________________________, hereby sell,
assign and transfer unto ___________________________________________
(__________) shares of the Common Stock of Unison Software, Inc. standing in
my name of the books of said corporation represented by Certificate No. _____
herewith and do hereby irrevocably constitute and appoint
________________________ to transfer the said stock on the books of the
within named corporation with full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Security
Agreement between ________________________ and the undersigned dated
______________, 19__.
Dated: _______________, 19___
Signature:
-----------------------------------
INSTRUCTIONS: Please do not fill in any blanks other than the signature
line. The purpose of this assignment is to enable the Company to exercise
its rights under the Security Agreement, without requiring additional
signatures on the part of the Purchaser.
<PAGE>
UNISON SOFTWARE
5101 PATRICK HENRY DRIVE
SANTA CLARA, CA 95054
March 10, 1997
Dominic Gattuso Jr.
2826 Broderick Street
San Francisco, CA 94123
RE: OPTION REPRICING
Dear Dominic:
I am pleased to announce that the Board of Directors of Unison Software,
Inc. (the "Company") has decided to offer holders of existing stock options
with an exercise price above $7.375 per share ("Old Options"), the
opportunity to amend their Old Options into New Options. Participation by
each option holder is, of course, voluntary.
The principal features of the New Options will be the same as the Old
Options (including number of shares), EXCEPT as follows:
1. VESTING SCHEDULE. The New Option will be unvested for six months
from the date upon which you accept the Company's repricing offer. However,
six months later, subject to your continued employment or consulting
relationship with the Company, the New Option will have the vesting from the
Old Option reinstated in full. In other words, after six months, you will
have exactly the same vesting in your New Option as you would have had in
your Old Option had you not participated in the repricing.
2. EXERCISE PRICE. The exercise price of the New Option is the NASDAQ
closing sales price per share ON THE LAST TRADING DAY PRIOR to the day upon
which you accept the repricing offer.
Your New Option will be an incentive stock option if the Old Option is an
incentive stock option. However, in the event that you receive a new
incentive stock option for which the aggregate exercise price of shares first
becoming purchasable in any calendar year exceeds $100,000, the portion so
purchasable in excess of $100,000 will be treated for tax purposes as a
nonstatutory stock option rather than as an incentive stock option. For this
purpose, shares that vest in 1997 under the New Option include any 1997
vesting for Old Options.
Attached hereto as Exhibit A is a schedule showing, as of March 10, 1997,
your outstanding options which have an exercise price greater than $7.375 per
share.
If you wish to amend any or all of your Old Options into New Options,
please so indicate by returning the enclosed form entitled "Amendment of
Stock Options" to Salwa Kawash at the Company who must receive your
completed form no later than March 18, 1997. After that date, the repricing
program will lapse.
Very truly yours,
/s/ Dick Armitage
<PAGE>
EXHIBIT A
Optionee: Dominic Gattuso
OUTSTANDING OPTIONS AS OF MARCH 10, 1997
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
|Option Grant Date | Number of Shares Remaining | Exercise Price Per Share | Expiration Date | ISO or NSO |
| | Unexercised | | | |
|<S> | <C> | <C> | <C> | <C> |
|---------------------------------------------------------------------------------------------------------|
|08/16/96 | 242,640 | $12.6667 | 08/16/06 | NSO |
- ----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
AMENDMENT OF STOCK OPTIONS
The undersigned optionee hereby elects to accept the Board's offer to
amend each of the following stock options for new options pursuant to the
terms set forth in the letter dated March 10, 1997 from the Company:
Option #1 Option #2 Option #3
--------- --------- ---------
Option Grant Date: 08/16/96 _________ _________
Number of Shares
Remaining Unexercised: 242,640 _________ _________
Original Exercise Price: $12.667 _________ _________
New Exercise Price: $6.75 _________ _________
ISO or NSO: NSO _________ _________
INSTRUCTIONS
Please set forth above the information required with respect to each
outstanding stock option that you wish to amend.
The undersigned acknowledges receipt of the Company's letter dated March
10, 1997 and the enclosures referenced therein and contained therewith. The
undersigned hereby agrees to be bound by all of the terms and conditions of
the repricing program as described in said letter, and understands that the
New Option(s) shall be subject to a new vesting schedule. The undersigned
further acknowledges and agrees that participation in the repricing program
shall not be construed as an express or implied agreement of employment with
the Company other than on an at-will basis.
Dominic Gattuso Jr.
/s/ Dominic Gattuso Jr.
Signature of Optionee
Date: March 13, 1997
<PAGE>
EXHIBIT 5.1
April 14, 1997
Unison Software, Inc.
5101 Patrick Henry Drive
Santa Clara, California 95054
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 April 14, 1997
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of (i) 1,200,000 shares of your Common
Stock reserved for issuance under the 1995 Stock Option Plan (the "Plan") and
(ii) 242,640 shares of your Common Stock reserved for issuance under the
Executive Stock Option Agreement, as amended (the "Agreement"). The
1,200,000 shares of Common Stock reserved under the Plan and the 242,640
shares reserved under the Agreement are referred to collectively hereinafter
as the "Shares." 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 and under
the Agreement.
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 agreements which accompany the Plan and in the
manner referred to in the Agreement, 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
/s/ WILSON, SONSINI, GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Unison Software, Inc. on Form S-8 (File No. 333-_____) of our reports dated
July 3, 1996, on our audits of the consolidated financial statements and
financial statement schedule of Unison Software, Inc. as of May 31, 1995 and
1996, and for each of the three years in the period ended May 31, 1996, which
reports are included in the Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
San Jose, California
April 9, 1997
