-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BI32W9tHXJ0/kqLLeVy1BAXNT+EITH8x+K1ul0IfbZcyyI2ZMSZLUgtIbjx/6BOD hZ7pSWDJBPnLlxVWYtPcxQ== 0000891618-98-005378.txt : 19981218 0000891618-98-005378.hdr.sgml : 19981218 ACCESSION NUMBER: 0000891618-98-005378 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19981217 EFFECTIVENESS DATE: 19981217 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTELLICORP INC CENTRAL INDEX KEY: 0000730169 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 942756073 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-69109 FILM NUMBER: 98771279 BUSINESS ADDRESS: STREET 1: 1975 EL CAMINO REAL WEST STREET 2: SUITE 101 CITY: MOUNTAIN VIEW STATE: CA ZIP: 94040-2216 BUSINESS PHONE: 4159655500 MAIL ADDRESS: STREET 1: 1975 EL CAMINO REAL WEST STREET 2: SUITE 101 CITY: MOUNTAIN VIEW STATE: CA ZIP: 94040-2216 FORMER COMPANY: FORMER CONFORMED NAME: INTELLIGENETICS INC DATE OF NAME CHANGE: 19840802 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on December 17, 1998 Registration No. 333-________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 INTELLICORP, INC. (Exact Name of Registrant as Specified in its Charter) Delaware 94-2756073 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 1975 El Camino Real West, Suite 101, Mountain View, California 94040-2216 (Address of Principal Executive Offices) 1991 Nonemployee Directors Stock Option Plan 1991 Stock Option Plan Nonqualified Stock Option Agreements ------------------------------------ (Full Title of the Plan) Kenneth H. Haas 1975 El Camino Real West Mountain View, California 94040-2216 (650) 965-5500 -------------- (Name, Address and Telephone Number, including area code of Agent for Service) Copy to: Richard A. Peers, Esq. Heller, Ehrman, White & McAuliffe 525 University Avenue Palo Alto, California 94301-1908 Telephone: (650) 324-7000 Facsimile: (650) 324-0638
CALCULATION OF REGISTRATION FEE ================================================================================================== Amount Proposed Maximum Proposed Maximum Amount Of Title Of Securities To Be Offering Price Per Aggregate Offering Registration To Be Registered Registered Share (1) Price Fee - -------------------------------------------------------------------------------------------------- Common Stock, par value $.001 3,102,000 $1.28 $3,970,560 $1,104.00 ==================================================================================================
(1) Estimated solely for the purpose of computing the amount of registration fee pursuant to Rule 457(c) under the Securities Act, as amended, based on the average of the high and low prices reported of the Registrant's Common Stock on the Nasdaq Stock Market on December 15, 1998. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed or to be filed with the Commission by the registrant are incorporated by reference in this registration statement: (a) The registrant's latest Annual Report on Form 10-KSB for the fiscal year ended June 30, 1998 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) The registrant's Quarterly Report on Form 10-QSB for the quarter ended September 30, 1998; (c) The description of the Common Stock of the registrant contained in the registration statement filed under the Exchange Act registering such Common Stock under Section 12 of the Exchange Act; (d) The registrants Current Report on Form 8-K filed on February 9, 1998; and (e) 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 hereby have been sold or which deregisters all securities then remaining unsold. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The registrant has the power to indemnify its officers and directors against liability for certain acts pursuant to Section 145 of the General Corporation Law of the State of Delaware. Section A of Article Ninth of the registrant's Certificate of Incorporation provides: 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended, (but, in the - -------------------------------------------------------------------------------- -2- - -------------------------------------------------------------------------------- 3 case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys' fees, judgments, fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Corporation may by action of its Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers. 2. Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. 3. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. ITEM 8. EXHIBITS 5.1 Opinion of Heller, Ehrman, White & McAuliffe 23.1 Consent of Heller, Ehrman, White & McAuliffe (filed as part of Exhibit 5.1) 23.2 Consent of Ernst & Young LLP, Independent Auditors 24 Power of Attorney (see page 6)
- -------------------------------------------------------------------------------- -3- - -------------------------------------------------------------------------------- 4 99.1 1991 Stock Option Plan 99.2 1991 Nonemployee Directors Stock Option Plan 99.3 Form of Nonqualified Stock Option Agreement
ITEM 9. UNDERTAKINGS A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registrations 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 liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed 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. - -------------------------------------------------------------------------------- -4- - -------------------------------------------------------------------------------- 5 C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. - -------------------------------------------------------------------------------- -5- - -------------------------------------------------------------------------------- 6 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Mountain View, State of California, on this 17th day of December, 1998. INTELLICORP, INC. By: ____________________________________ Kenneth H. Haas, President POWER OF ATTORNEY TO SIGN AMENDMENTS KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Kenneth H. Haas and Kenneth A. Czaja, or either of them, with full power of substitution, such person's true and lawful attorneys-in-fact and agents for such person in such person's name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully, to all intents and purposes, as he or such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated. Director and President (Principal December 17, 1998 _____________________________ Executive Officer) Kenneth H. Haas Chief Financial Officer and Secretary December 17, 1998 _____________________________ (Principal Financial and Accounting Kenneth A. Czaja Officer) _____________________________ Director December 17, 1998 Katharine C. Branscomb _____________________________ Director December 17, 1998 Joseph A. Graziano _____________________________ Director December 17, 1998 Norman J. Wechsler _____________________________ Director December 17, 1998 Arthur W. Berry
- -------------------------------------------------------------------------------- -6- - -------------------------------------------------------------------------------- 7 INDEX TO EXHIBITS
Sequentially Item No. Description of Item Numbered Page - -------- ------------------- ------------- 5.1 Opinion of Heller, Ehrman, White & McAuliffe........................ 23.1 Consent of Heller, Ehrman, White & McAuliffe (filed as part of Exhibit 5)........................................ 23.2 Consent of Ernst & Young LLP, Independent Auditors.................. 99.1 1991 Stock Option Plan.............................................. 99.2 Nonemployee Directors Stock Option Plan............................. 99.3 Form of Nonqualified Stock Option Agreement.........................
EX-5.1 2 OPINION OF HELLER, EHRMAN, WHITE & MCAULIFFE 1 EXHIBIT 5.1 December 17, 1998 IntelliCorp, Inc. 1975 El Camino Real West Mountain View, California 94040-2216 Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have acted as counsel to IntelliCorp, Inc., a Delaware corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") which the Company proposes to file with the Securities and Exchange Commission on December 17, 1998 for the purpose of registering under the Securities Act of 1933, as amended, an additional 3,102,000 shares (the "Shares") of its $.001 par value Common Stock, 2,500,000 of which are issuable to employees, directors and consultants under the Company's 1991 Stock Option Plan (the "Option Plan"), 150,000 of which are issuable to directors under the 1991 Nonemployee Directors Stock Option Plan (the "Directors Option Plan," and together with the Option Plan, the "Plans") and 452,000 of which are issuable pursuant to Nonqualified Stock Option Agreements (the "Option Agreements") issued to employees, officers and directors of the Company. In connection with this opinion, we have assumed the authenticity of all records, documents and instruments submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals of all records, documents and instruments submitted to us as copies. We have based our opinion upon our review of the following records, documents and instruments: (a) The Restated Certificate of Incorporation of the Company, as amended, certified by the Secretary of State of the State of Delaware as of December 4, 1998 and certified to us by an officer of the Company as being complete and in full force and effect as of the date of this opinion; 2 IntelliCorp, Inc. December 17, 1998 Page 2 (b) The Bylaws of the Company, certified to us by an officer of the Company as being complete and in full force and effect as of the date of this opinion; (c) A Certificate of the Chief Financial Officer of the Company (i) attaching records certified to us as constituting all records of proceedings and actions of the Board of Directors and stockholders of the Company relating to the Plans and the Registration Statement, and (ii) certifying as to certain factual matters; (d) The Registration Statement; (e) The Option Plan; (f) The Directors Option Plan; (g) The form of Option Agreement; and (h) A letter from ChaseMellon Shareholder Services, the Company's transfer agent, dated December 14, 1998 as to the number of shares of the Company's Common Stock that were outstanding on December 14, 1998. This opinion is limited to the Delaware General Corporation Law. We disclaim any opinion as to any statute, rule, regulation, ordinance, order or other promulgation of any other jurisdiction or any regional or local governmental body. Based upon the foregoing and our examination of such questions of law as we have deemed necessary or appropriate for the purpose of this opinion, and assuming that (i) the Registration Statement becomes and remains effective during the period when the Shares are offered and issued, (ii) the full consideration stated in the Plans or the Option Agreements is paid for each Share and that such consideration in respect of each Share includes a cash payment at least equal to the par value thereof, and (iii) all applicable securities laws are complied with, it is our opinion that when issued and sold by the Company, after payment therefor in the manner provided in the applicable Plan or Option Agreement and in the Registration Statement, the Shares will be legally issued, fully paid and nonassessable. This opinion is rendered to you in connection with the Registration Statement and is solely for your benefit. This opinion may not be relied upon by you for any other purpose, or relied upon by any other person, firm, corporation or other entity for any purpose, without our prior written consent. We disclaim any obligation to advise you of 3 IntelliCorp, Inc. December 17, 1998 Page 3 any change of law that occurs, or any facts of which we become aware, after the date of this opinion. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ HELLER, EHRMAN, WHITE & MCAULIFFE EX-23.2 3 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS 1 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1991 Nonemployee Directors Stock Option Plan, 1991 Stock Option Plan, and Nonqualified Stock Option Agreements of Intellicorp, Inc. of our report dated July 31, 1998, with respect to the consolidated financial statements of Intellicorp, Inc. in its Annual Report (Form 10-KSB) for the year ended June 30, 1998, filed with the Securities and Exchange Commission. Palo Alto, California December 17, 1998 EX-99.1 4 1991 STOCK OPTION PLAN 1 EXHIBIT 99.1 1991 STOCK OPTION PLAN OF INTELLICORP, INC. 1. PURPOSES OF THE PLAN The purposes of the 1991 Stock Option Plan (the "Plan") of Intellicorp, Inc., a Delaware corporation (the "Company"), are to: (a) Encourage selected employees, directors and consultants to improve operations and increase profits of the Company; (b) Encourage selected employees, directors and consultants to accept or continue employment or association with the Company or any Affiliate (as defined below); and (c) Increase the interest of selected employees, directors and consultants in the Company's welfare through participation in the growth in value of the common stock of the Company (the "Common Stock"). Options granted under this Plan ("Options") may be "incentive stock options" ("ISOs") intended to satisfy the requirements of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or "nonqualified options" ("NQOs"). 2. ELIGIBLE PERSONS Every person who at the date of grant of an option is an employee of the Company or of any Affiliate of the Company is eligible to receive NQOs or ISOs under this Plan. Every person who at the date of grant is a director of or consultant to the Company or to any Affiliate of the Company is eligible to receive NQOs under this Plan. The term "Affiliate" as used in the Plan means a parent or subsidiary corporation as defined in the applicable provisions (currently Sections 425(e) and (f), respectively) of the Code. The term "employee" includes an officer or director who is an employee, of the Company. The term "consultant" includes persons employed by, or otherwise affiliated with, a consultant. 3. STOCK SUBJECT TO THIS PLAN Subject to the provisions of Section 6.1.1 of the Plan, the maximum aggregate number of shares of stock which may be issued on exercise of options granted 2 pursuant to this Plan is 3,004,778 shares of Common Stock, as set forth on the last page of this Plan. The shares covered by the portion of any grant under the Plan which expires unexercised shall become available again for grants under the Plan. 4. ADMINISTRATION (a) This Plan shall be administered by the Board of Directors of the Company (the "Board"), or by a committee (the "Committee") of at least two (2) Board members to which administration of the Plan is delegated (in either case, the "Administrator"), in accordance with the provisions of Rule 16b-3 promulgated by the Securities and Exchange Commission ("Rule 16b-3"), or by any successor rule thereto. (b) Subject to the other provisions of this Plan, the Administrator shall have the authority, in its discretion: (i) to grant Options; (ii) to determine the fair market value of the Common Stock subject to Options; (iii) to determine the exercise price of Options granted; (iv) to determine the persons to whom, and the time or times at which, Options shall be granted, and the number of shares subject to each Option; (v) to interpret this Plan; (vi) to prescribe, amend and rescind rules and regulations relating to this Plan; (vii) to determine the terms and provisions of each Option granted (which need not be identical), including, but not limited to, the time or times at which Options shall be exercisable; (viii) with the consent of the optionee, to modify or amend any Option; (ix) to defer (with the consent of the optionee) the exercise date of any Option or to defer (with the consent of the optionee) or to accelerate the expiration of any right of repurchase which the Company may have with respect to shares issued or issuable upon exercise of any Option; (x) to authorize any person to execute on behalf of the Company any instrument evidencing the grant of an Option; and (xi) to make all other determinations deemed necessary or advisable for the administration of this Plan. The Administrator (A) may delegate to one or more officers of this corporation the authority to grant Options in an amount not to exceed 10,000 shares of Common Stock to persons other than "executive officers" as defined in the Securities Exchange Act and the rules and regulations thereunder and to determine the fair market value of Common Stock subject to such Options, to determine the exercise price of such Options granted (which need not be identical), including, but not limited to, the time or times at which such Options shall be exercisable, and to determine the terms and provisions of each such Option granted and (B) may delegate nondiscretionary administrative duties to such employees of the Company as it deems proper. (c) All questions of interpretation, implementation and application of this Plan shall be determined by the Administrator. Such determination shall be final and binding on all persons. 2 3 5. GRANTING OF OPTIONS; OPTION AGREEMENT (a) No Options shall be granted under this Plan after ten (10) years from the date of adoption of this Plan by the Board. (b) Each Option shall be evidenced by a written stock option agreement, in form satisfactory to the Company, executed by the Company and the person to whom such Option is granted; provided, however, that the failure by the Company, the optionee or both to execute such an agreement shall not invalidate the granting of an Option. (c) The agreement shall specify whether each Option it evidences is a NQO or an ISO. However, notwithstanding such designations, if the aggregate fair market value of the shares under Options designated as ISOs would become exercisable for the first time by any optionee at a rate in excess of $100,000 in any calendar year (under all plans of the Company), then unless otherwise provided in the stock option agreement or by the Administrator, the exercisability of ISOs (or portions thereof) having the highest per share exercise price shall be delayed until the earliest time at which their exercisability would not cause the $100,000 limitation to be exceeded. For purposes of this Section 5(c), 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. (d) The Administrator may approve the grant of Options under this Plan to persons who are expected to become employees, directors or consultants of the Company, but are not employees, directors or consultant at the date of approval. In such cases, the Option shall be deemed granted, without further approval, on the date the grantee assumes the employment or consulting relationship forming the basis for such grant, and, in addition, satisfies all requirements of this Plan for Options granted on that date. 6. TERMS AND CONDITIONS OF OPTIONS Each Option granted under this Plan shall be designated as an NQO or an ISO. Each Option shall be subject to the terms and conditions set forth in Section 6.1. NQOs shall also be subject to the terms and conditions set forth in Section 6.2, but not those set forth in Section 6.3. ISOs shall also be subject to the terms and conditions set forth in Section 6.3, but not those set forth in Section 6.2. 3 4 6.1 Terms and Conditions to Which All Options Are Subject. All Options granted under this Plan shall be subject to the following terms and conditions: 6.1.1. Changes in Capital Structure. Subject to Section 6.1.2, if the Common Stock of the Company is changed by reason of a stock split, reverse stock split, stock dividend or re capitalization, or converted into or exchanged for other securities as a result of a merger, consolidation or reorganization, appropriate adjustments shall be made in: (a) the number and class of shares of Common Stock subject to this Plan and each Option outstanding under this Plan; and (b) the exercise price of each outstanding Option; provided, however, that the Company shall not be required to issue fractional shares as a result of any such adjustments. Each such adjustment shall be subject to approval by the Administrator in its sole discretion. 6.1.2. Corporate Transactions. In connection with an acquisition of the Company affected by a merger, consolidation, sale of all or substantially all of the Company's assets, acquisition of shares, or any like occurrence in which the Company is involved, the repurchase rights of the Company with respect to the shares issued or issuable upon exercise of outstanding Options shall expire with respect to twice the number of shares otherwise indicated pursuant to the terms of the Option (up to a maximum of 100%); provided that if Options have been held less than one year the length of time between the date of grant and the date determined by the Administrator in accordance with the next sentence shall be doubled to determine the number of shares as to which repurchase rights shall expire. The Administrator shall have the authority, in its sole discretion to: (i) determine the time prior to consummation of such acquisition when such increased expiration of repurchase rights shall become effective; and (ii) grant more favorable terms regarding expiration of repurchase rights in connection with the occurrence of any such acquisition. 6.1.3. Time of Option Exercise. Except as necessary to satisfy the requirements of Section 422 of the Code and subject to Section 5, Options granted under this Plan shall be exercisable: (a) immediately as of the effective date of the stock option agreement granting the Option; or (b) at such other times as are specified in the written stock option agreement relating to such Option; provided, however, that if the optionee is a director or officer, as those terms are used in Section 16 of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), such Option may not be exercisable, in whole or in part, at any time prior to the six (6) month anniversary of the date of Option grant. No Option shall be exercisable, however, until a written stock option agreement in form satisfactory to the Company is executed by the Company and the optionee. 6.1.4. Option Grant Date. Except in the case of advance approvals described in Section 5(d), the date of grant of an Option under this Plan shall be the date as of which the Administrator approves the grant. 4 5 6.1.5. Nonassignability of Option Rights. No Option granted under this Plan shall be assignable or otherwise transferable by the optionee except by will or by the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Code. During the life of the optionee, an Option shall be exercisable only by the optionee. 6.1.6. Payment. Except as provided below, payment in full, in cash, shall be made for all stock purchased at the time written notice of exercise of an Option is given to the Company, and proceeds of any payment shall constitute general funds of the Company. At the time an Option is granted or exercised, the Administrator, in the exercise of its absolute discretion, may authorize any one or more of the following additional methods of payment: (a) acceptance of the optionee's full recourse promissory note for all or part of the Option price, less the par value per share, which must be paid in cash, payable on such terms and bearing such interest rate as determined by the Administrator (but in no event less than the minimum interest rate specified under the Code at which no additional interest on debt instruments of such type would be imputed), which promissory note may be either secured or unsecured in such manner as the Administrator shall approve (including, without limitation, by a security interest in the shares of the Company). In making its determination to accept a promissory note from an employee of the Company, the Board shall consider if acceptance of such consideration may be reasonably expected to benefit the Company; (b) delivery by the optionee of Common Stock already owned by the optionee for all or part of the Option price, provided the value (determined as set forth in Section 6.1.11) of such Common Stock is equal on the date of exercise to the Option price, or such portion thereof as the optionee is authorized to pay by delivery of such stock; provided, however, that if an optionee has exercised any portion of any option granted by the Company by delivery of Common Stock, the optionee may not, within six (6) months following such exercise, exercise any Option granted under this Plan by delivery of Common Stock; and (c) any other consideration and method of payment to the extent permitted under Sections 152 and 153 of the Delaware General Corporation Law. 5 6 6.1.7. Termination of Employment. Unless determined otherwise by the Administrator in its absolute discretion, to the extent not already expired or exercised, an Option shall terminate at the earlier of: (a) the Expiration Date (as defined in Section 6.1.11); or (b) three (3) months after termination of employment with the Company or any Affiliate (with respect to employees) or three (3) months after the last day served as a consultant to the Company or any Affiliate (with respect to consultants); provided, that an Option shall be exercisable after the date of termination of employment or service as a consultant only to the extent exercisable on the date of termination; and provided further, that if termination of employment or service as a consultant is due to the optionee's death or "disability" (as determined in accordance with Section 22(e)(3) of the Code), the optionee, or the optionee's personal representative (or any other person who acquires the Option from the optionee by will or the applicable laws of descent and distribution), may at any time within twelve (12) months after the termination of employment or service as a consultant (or such lesser period as is specified in the option agreement but in no event after the Expiration Date of the Option), exercise the rights to the extent they were exercisable on the date of the termination. A transfer of an optionee from the Company to an Affiliate or vice versa, or from one Affiliate to another, or a leave of absence due to sickness, military service or other cause duly approved by the Company, shall not be deemed a termination of employment or the consulting relationship for purposes of this Plan. 6.1.8. Repurchase of Stock. Unless otherwise provided for by the Administrator in the option agreement, the Common Stock to be delivered pursuant to the exercise of any Option granted to an employee or consultant under this Plan may be subject to a right of repurchase in favor of the Company, with respect to any employee or consultant whose employment or consulting relationship with the Company is terminated, at the Option exercise price per share, and such shares shall be held by the Company in escrow to facilitate the Company's repurchase right. Unless otherwise provided for by the Administrator in the option agreement, the Company's repurchase right shall expire as to 25% of the total amount of the shares subject to the Option on the first anniversary date of the Option grant and shall expire as to an additional 6.25% of such shares on a quarterly basis thereafter. For purposes of the immediately preceding provision, the percentages set forth therein are applicable to full-time employees and the percentage applicable to part-time employees shall be adjusted proportionately to the percentage of full-time employment that such employee is working during the relevant period. Determination of the number of shares subject to such right of repurchase shall be made as of the date the employee's employment by or consultant's consulting relationship with, the Company terminates, not as of the date that any Option granted to such employee or consultant is thereafter exercised. 6 7 6.1.9. Withholding and Employment Taxes. At the time of exercise of an Option (or at such later time(s) as the Company may prescribe), the optionee shall remit to the Company in cash all applicable federal and state withholding and employment taxes. If authorized by the Administrator in its sole discretion, an optionee subject to Section 16(b) of the Exchange Act shall be permitted to elect, by means of a form of election to be prescribed by the Administrator, to have shares of Common Stock which are acquired upon exercise of the Option withheld by the Company or to tender to the Company other shares of Common Stock or other securities of the Company owned by the optionee on the date of determination of the amount of tax to be withheld as a result of the exercise of such Option (the "Tax Date") to pay the amount of tax that is required by law to be withheld by the Company as a result of the exercise of such Option, provided that such election satisfies the following requirements: (a) such election shall be irrevocable; (b) such election shall be subject to the disapproval of the Administrator at any time; (c) such election may not be made within six (6) months of the grant date of the Option the exercise of which resulted in the tax withholding obligation (the "Related Option"), except that this limitation shall not apply in the event of death or disability of the optionee occurring prior to the expiration of the six (6) month period; and (d) such election must be made either: (x) at least six (6) months prior to the Tax Date; or (y) prior to or coincident with the date of exercise of the Related Option and within any ten (10) business day period beginning on the third business day following the date of release by the Company for publication of quarterly or annual summary statements of sales or earnings of the Company. Any securities so withheld or tendered shall be valued by the Company as of the Tax Date. 6.1.10. Other Provisions. Each Option granted under this Plan may contain such other terms, provisions and conditions not inconsistent with this Plan as may be determined by the Administrator, and each ISO granted under this Plan shall include such provisions and conditions as are necessary to qualify the Option as an "incentive stock option" within the meaning of Section 422 of the Code. 6.1.11. Option Term. No ISO shall be exercisable more than ten (10) years after the date of grant, or such lesser period of time as is set forth in the option agreement, and each NQO granted hereunder shall expire ten (10) years and two (2) days after the date of grant (the end of the exercise period stated in the option agreement is referred to in this Plan as the "Expiration Date"). Notwithstanding the foregoing, no ISO granted to a Ten Percent Stockholder (as defined in Section 6.3.1) shall be exercisable more than five (5) years after the date of grant. 6.1.12. Limitation on Option Grants. The Company may not grant options under the Plan for more than 500,000 shares to any one participant in any fiscal year. 7 8 6.2. Terms and Conditions to Which Only NQOs Are Subject. The exercise price of a NQO shall be determined by the Administrator and may be less than the fair market value of the Common Stock subject to the Option on the date of grant. 6.3. Terms and Conditions to Which Only ISOs Are Subject. Options granted under this Plan which are designated as ISOs shall be subject to the following terms and conditions: 6.3.1. Exercise Price. The exercise price of an ISO shall be determined in accordance with the applicable provisions of the Code and shall in no event be less than the fair market value of the Common Stock subject to the Option on the date of grant, except that the exercise price of an ISO granted to any person who owns, directly or by attribution, shares possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any Affiliate (a "Ten Percent Stockholder") shall in no event be less than 110% of such fair market value. 6.3.2. Disqualifying Dispositions. If stock acquired upon exercise of an ISO is disposed of in a "disqualifying disposition" within the meaning of Section 422 of the Code, the holder of the stock immediately before the disposition shall notify the Company in writing of the date and terms of the disposition and comply with any other requirements imposed by the Company in order to enable the Company to secure any related income tax deduction to which it is entitled. 7. MANNER OF EXERCISE (a) An optionee wishing to exercise an Option shall give written notice to the Company at its principal executive office, to the attention of the officer of the Company designated by the Administrator, accompanied by payment of the exercise price as provided in Section 6.1.6 and, if required, by payment of any federal or state withholding or employment taxes required to be withheld by virtue of exercise of the Option. The date the Company receives written notice of an exercise hereunder accompanied by payment of the exercise price and any required federal or state withholding or employment taxes will be considered as the date such Option was exercised. There is no limit on the number of times Options may be exercised in any calendar year, unless the President of the Company or the Board prescribes such a limit. (b) Promptly after the date an Option is exercised, the Company shall, without stock issue or transfer taxes to the optionee or other person entitled to exercise the Option, deliver to the optionee or such other person a certificate or certificates for the requisite number of shares of Common Stock. An optionee or transferee of an optionee shall not have any privileges as a stockholder with respect to any Common Stock covered by the Option until the date of issuance of a stock certificate. 8 9 8. EMPLOYMENT OR CONSULTING RELATIONSHIP Nothing in this Plan or any Option granted thereunder shall interfere with or limit in any way the right of the Company or of any of its Affiliates to terminate any optionee's employment or consulting at any time, nor confer upon any optionee any right to continue in the employ of, or consult with, the Company or any of its Affiliates. 9. FINANCIAL INFORMATION The Company shall provide to each optionee during the period such optionee holds an outstanding Option a copy of the financial statements of the Company as prepared either by the Company or independent certified public accountants of the Company. Such financial statements shall be delivered as soon as practicable following the end of the Company's fiscal year during the period Options are outstanding. 10. LEGAL REQUIREMENTS The Company shall not be obligated to offer or sell any shares upon exercise of any Option unless the shares are at that time effectively registered or exempt from registration under the federal securities laws and the offer and sale of the shares are otherwise in compliance with all applicable securities laws and the regulations of any stock exchange on which the Company's securities may then be listed. The Company shall have no obligation to register the shares of Common Stock covered by this Plan under the federal securities laws or take any other steps as may be necessary to enable the shares of Common Stock covered by this Plan to be offered and sold under federal or other securities laws. Upon exercising all or any portion of an Option, an optionee may be required to furnish representations or undertaking deemed appropriate by the Company to enable the offer and sale of the shares or subsequent transfers of any interest in the shares to comply with applicable securities laws. Certificates evidencing shares acquired upon exercise of Options shall bear any legend required by, or useful for purposes of compliance with, applicable securities laws, this Plan or the option agreements. 11. AMENDMENTS TO PLAN The Board may amend this Plan at any time. Without the consent of an optionee, no amendment may adversely affect outstanding Options except to conform this Plan and ISOs granted under this Plan to federal or other tax laws relating to incentive stock options. No amendment shall require stockholder approval unless: (a) stockholder approval is required to preserve incentive stock option treatment for federal income tax purposes; 9 10 (b) stockholder approval is required to meet the exemptions provided by Rule 16b-3, or any successor rule thereto; or (c) the Board otherwise concludes that stockholder approval is advisable. 12. STOCKHOLDER APPROVAL; TERM This Plan shall become effective upon adoption by the Board of Directors; provided, however, that no Option shall be exercisable unless and until written consent of holders of a majority of the outstanding shares of capital stock of the Company, or approval by holders of a majority of shares of capital stock of the Company present, or represented, and entitled to vote at a validly called stockholders' meeting (or such greater number as may be required by law or applicable governmental regulations or orders) is obtained within twelve (12) months after adoption by the Board. This Plan shall terminate ten (10) years after adoption by the Board unless terminated earlier by the Board. The Board may terminate this Plan at any time without stockholder approval. No Options shall be granted after termination of this Plan, but termination shall not affect rights and obligations under then outstanding Options. Plan adopted by the Board of Directors on December 19, 1991. Plan approved by Stockholders on February 3, 1992. Amendment to the Plan increasing the number of shares covered to 1,304,778 adopted by the Board of Directors on May 3, 1993 and approved by the Stockholders on November 30, 1993. Further amendments (not requiring Stockholder approval) approved by the Board of Directors on January 31, 1994 and February 16, 1994. Amendment to the Plan increasing the number of shares covered to 2,004,778 adopted by the Board of Directors on September 13, 1994 and approved by the stockholders on November 29, 1994. Amendment to the Plan increasing the number of shares covered to 3,004,778 adopted by the Board of Directors on October 15, 1996 and approved by the stockholders on December 6, 1996. Amendment to the Plan increasing the number of shares covered to 4,504,778 adopted by the Board of Directors and subsequently approved by the stockholders on December 8, 1998. Total number of shares covered by the Plan: 4,504,778. 10 EX-99.2 5 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN 1 EXHIBIT 99.2 1991 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN OF INTELLICORP, INC. 1. PURPOSES OF THE PLAN The purposes of the 1991 Nonemployee Directors Stock Option Plan of Intellicorp, Inc., a Delaware corporation, are to: (a) Encourage Nonemployee Directors to improve operations and increase profits of the Company; (b) Encourage Nonemployee Directors to accept or continue their association with the Company; and (c) Increase the interest of Nonemployee Directors in the Company's welfare through participation in the growth in value of the Common Stock of the Company. Options granted hereunder shall be "Nonstatutory Options", and shall not include "incentive stock options" intended to satisfy the requirements of Section 422 of the Internal Revenue Code of 1986, as amended. 2. DEFINITIONS As used herein, the following definitions shall apply: (a) "Administrator" shall mean the entity, either the Board or the Committee, responsible for administering this Plan, as provided in Section 3. (b) "Board" shall mean the Board of Directors of the Company, as constituted from time to time. (c) "Code" shall mean the Internal Revenue Code of 1986, as amended. (d) "Committee" shall mean the committee, if any, appointed by the Board in accordance with Section 5(a) to administer this Plan. (e) "Common Stock" shall mean the Common Stock of the Company. (f) "Company" shall mean Intellicorp, Inc., a Delaware corporation. 2 (g) "Director Fee" shall mean the cash amount a Nonemployee Director shall be entitled to receive for serving as a director of the Company in any fiscal year. (h) "Fair Market Value" shall mean, as of the date in question, the last transaction price quoted by the NASDAQ National Market System on the date of grant; provided, however, that if the foregoing shall be inappropriate, then the Fair Market Value shall be determined by the Administrator in good faith at its sole discretion and on such basis as it shall deem appropriate. Such determination shall be conclusive and binding on all persons. (i) "Nonemployee Director" shall mean any person who is a member of the Board but is not an employee of the Company or any Parent or Subsidiary of the Company and has not been an employee of the Company or any Parent or Subsidiary of the Company at any time during the preceding twelve (12) months. Service as a director does not in itself constitute employment for purposes of this definition. (j) "Option" shall mean a stock option granted pursuant to this Plan. Each Option shall be a nonstatutory option not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code. (k) "Option Agreement" shall mean the written agreement described in Section 6 evidencing the grant of an Option to a Nonemployee Director and containing the terms, conditions and restrictions pertaining to such Option. (l) "Option Shares" shall mean the Shares subject to an Option granted under this Plan. (m) "Optionee" shall mean a Nonemployee Director who holds an Option. (n) "Plan" shall mean this Intellicorp, Inc. Nonemployee Directors Stock Option Plan, as it may be amended from time to time. (o) "Related Option" shall have the meaning set forth in Section 8.7. (p) "Rule 16b-3" shall have the meaning set forth in Section 5(a). (q) "Section" unless the context clearly indicates otherwise, shall refer to a Section of this Plan. (r) "Share" shall mean a share of Common Stock, as adjusted in accordance with Section 8.1. 2 3 (s) "Subsidiary" shall mean a "subsidiary corporation" of the Company, whether now or hereafter existing, within the meaning of Section 425(f) of the Code, but only for so long as it is a "subsidiary corporation". 3. ELIGIBLE PERSONS Every person who at the date of grant of an Option is a Nonemployee Director is eligible to receive Options under this Plan. 4. STOCK SUBJECT TO THIS PLAN Subject to Section 8.1 of the Plan, the maximum aggregate number of Shares which may be issued on exercise of Options granted pursuant to this Plan is 250,000 Shares. The Shares covered by the portion of any grant under the Plan which expires unexercised shall become available again for grants under the Plan. 5. ADMINISTRATION (a) This Plan shall be administered by the Board, or by a committee (the "Committee") of at least two (2) Board members to which administration of the Plan is delegated (in either case, the "Administrator"), in accordance with the "disinterested administration" requirements of Rule 16b-3 promulgated by the Securities and Exchange Commission ("Rule 16b-3"), or any successor rule thereto. (b) Subject to the other provisions of the plan, the Administrator shall have the authority, in its sole discretion: (i) to determine the Fair Market Value of the Shares subject to Option; (ii) to interpret this Plan; (iii) to prescribe, amend and rescind rules and regulations relating to this Plan; (iv) to defer (with the consent of the Optionee) or accelerate the exercise date of any Option; (v) to authorize any person to execute on behalf of the Company any instrument evidencing the grant of an Option; and (vi) to make all other determinations deemed necessary or advisable for the administration of this Plan. The Administrator may delegate nondiscretionary administrative duties to such employees of the Company as it deems proper. (c) All questions of interpretation, implementation and application of this Plan shall be determined by the Administrator. Such determination shall be final and binding on all persons. 3 4 6. GRANT OF OPTIONS (a) Subject to the terms and conditions of this Plan, if any person who is not an officer or employee of the Company is elected or appointed as a member of the Board after the Company's annual meeting of stockholders held in February 1992, then on the effective date of such appointment or election of such person, the Company shall grant to such Nonemployee Director an Option to purchase 15,000 Shares at an exercise price equal to the Fair Market Value of such Shares on the date of such option grant. (b) Subject to the terms and conditions of this Plan, on the date of the first meeting of the Board immediately following each annual meeting of stockholders of the Company (even if held on the same day as the meeting of stockholders) which is held after the date this Plan is approved by the stockholders of the Company and thereafter, the Company shall grant to each Nonemployee Director then in office an Option to purchase 5,000 Shares at an exercise price equal to the Fair Market Value of such Shares on the date of such option grant; provided that if the first such meeting of the Board occurs within six months after the date a director is first elected or appointed as a member of the Board, such director shall not receive an Option pursuant to this subsection (b). (c) No Options shall be granted under this Plan after ten (10) years from the date of adoption of this Plan by the Board. Each Option shall be evidenced by a written Option Agreement, in form satisfactory to the Company, executed by the Company and the Nonemployee Director to whom such Option is granted; provided, however, that the failure by the Company, the Nonemployee Director or both to execute such an agreement shall not invalidate the granting of an Option. 7. DIRECTOR FEE ELECTION Upon election by the Board, all or any part of the Director Fees can be waived in any given year, and the Director Fees waived may be applied by the Board to reduce the exercise price of Options granted to the Nonemployee Directors pursuant to Sections 6(a) and 6(b). The amount of Director Fees waived may vary from year to year, and upon election by the Board, an amount less than the amount of Director Fees waived may be applied to reduce the exercise price of Options with the balance forgiven. By way of example, if the Board elects pursuant to this Section to waive an aggregate of $15,000 of Director Fees which would otherwise be payable to three Nonemployee Directors ($5,000 of fees for each), an amount of up to $15,000 (up to $5,000 each) may be applied by the Board to reduce the exercise price of Options granted pursuant to Section 6(b), so that if each of the three Nonemployee Directors in this example are granted Options for 5,000 shares exercisable at $1.50 each, the $5,000 could be applied to reduce the exercise price 4 5 of these options to $.50 per share ($5,000) 5,000 shares = $1.00 per share reduction in exercise price). 8. TERMS AND CONDITIONS OF OPTIONS Each Option granted under this Plan shall be subject to the terms and conditions set forth in this Section 8. 8.1 Changes in Capital Structure. Subject to Section 8.2, if the Common Stock is changed by reason of a stock split, reverse stock split, stock dividend or re-capitalization, or converted into or exchanged for other securities as a result of a merger, consolidation or reorganization, appropriate adjustments shall be made in: (a) the number and class of shares of Common Stock subject to this Plan and each Option outstanding under this Plan; and (b) the exercise price of each outstanding Option; provided, however, that the Company shall not be required to issue fractional shares as a result of any such adjustments. Each such adjustment shall be subject to approval by the Administrator in its sole discretion. 8.2 Corporate Transactions. In connection with an acquisition of the Company affected by a merger, consolidation, sale of all or substantially all of the Company's assets, acquisition of shares, or any like occurrence in which the Company is involved, all outstanding Options shall become exercisable with respect to twice the number of Options otherwise exercisable pursuant to the terms of the Option (up to a maximum of 100%). The Administrator shall have the authority, in its sole discretion to: (i) determine the time prior to consummation of such acquisition when such increased exercisability of Options shall become effective; and (ii) grant more favorable terms regarding exercisability of Options in connection with the occurrence of any such acquisition. 8.3 Time of Option Exercise. Subject to the other provisions of this Plan, each Option granted pursuant to this Plan shall be for a term of ten (10) years and two (2) days. Each Option granted under Section 6 of this Plan shall be exercisable in full six months after the date of grant. The Company shall have a right of repurchase with respect to shares purchased upon exercise of Options granted pursuant to Section 6 which shall expire with respect to 25% of the number of Shares covered by such Option six months after the date such Option is granted and shall expire with respect to 12-1/2% of the number of shares covered by such Option at the end of each three-month period thereafter. 8.4 Limitation on Other Grants. The Administrator shall have no discretion to grant Options under this Plan other than as set forth in Sections 6(a) and 6(b). 5 6 8.5 Nonassignability of Option Rights. No Option granted under this Plan shall be assignable or otherwise transferable by the Optionee, except by will or the laws of descent and distribution, or pursuant to a qualified domestic relations order as defined by the Code. During the life of an Optionee, an Option shall be exercisable only by the Optionee. 8.6 Payment. Except as provided below, payment in full, in cash, shall be made for all Option Shares purchased at the time written notice of exercise of an Option is given to the Company, and proceeds of any payment shall constitute general funds of the Company. At the time an Option is granted or exercised, the Administrator, in the exercise of its absolute discretion, may authorize any one or more of the following additional methods of payment: (a) acceptance of the Optionee's full recourse promissory note for all or part of the Option price, less the par value per share, which must be paid in cash, payable on such terms and bearing such interest rate as determined by the Administrator (but in no event less than the minimum interest rate specified under the Code at which no additional interest on debt instruments of such type would be imputed), which promissory note may be either secured or unsecured in such manner as the Administrator shall approve (including, without limitation, by a security interest in the Shares); (b) delivery by the Optionee of Common Stock already owned by the Optionee for all or part of the Option price, provided the Fair Market Value of such Common Stock is equal on the date of exercise to the Option price, or such portion thereof as the Optionee is authorized to pay by delivery of such stock; provided, however, that if an Optionee has exercised any portion of any option granted by the Company by delivery of Common Stock, the Optionee may not, within six (6) months following such exercise, exercise any Option granted under this Plan by delivery of Common Stock; and (c) any other consideration and method of payment to the extent permitted under Sections 152 and 153 of the Delaware General Corporation Law. 8.7 Termination as Director. Unless determined otherwise by the Administrator in its absolute discretion, to the extent not already expired or exercised, an Option shall terminate at the earlier of: (a) the expiration of the term of the Option; or (b) three (3) months after the last day served by the Optionee as a director of the Company; provided, that an Option shall be exercisable after the date of termination of service as a director only to the extent exercisable on the date of termination; and provided further, that if termination of service as a director is due to the Optionee's death or "disability" (as determined in accordance with Section 22(e)(3) of the Code), the Optionee, or the Optionee's personal representative (or any other person who acquires the Option from the Optionee by will or the applicable laws of descent and distribution), may at any time within twelve (12) months after the termination of service as a director (or such lesser period as is specified in the 6 7 Option Agreement but in no event after the expiration of the term of the Option), exercise the rights to the extent they were exercisable on the date of the termination. 8.8 Withholding and Employment Taxes. At the time of exercise of an Option (or at such later time(s) as the Company may prescribe), the Optionee shall remit to the Company in cash all applicable federal and state withholding and employment taxes. If authorized by the Administrator in its sole discretion, an Optionee shall be permitted to elect, by means of a form of election to be prescribed by the Administrator, to have shares of Common Stock which are acquired upon exercise of the Option withheld by the Company or to tender to the Company other shares of Common Stock or other securities of the Company owned by the Optionee on the date of determination of the amount of tax to be withheld as a result of the exercise of such Option (the "Tax Date") to pay the amount of tax that is required by law to be withheld by the Company as a result of the exercise of such Option; provided, that such election satisfies the following requirements: (a) such election shall be irrevocable; (b) such election shall be subject to the disapproval of the Administrator at any time; (c) such election may not be made within six (6) months of the grant date of the Option the exercise of which resulted in the tax withholding obligation (the "Related Option"), except that this limitation shall not apply in the event of death or disability of the Optionee occurring prior to the expiration of the six (6) month period; and (d) such election must be made either: (x) at least six (6) months prior to the Tax Date; or (y) prior to or coincident with the date of exercise of the Related Option and within any ten (10) business day period beginning on the third business day following the date of release by the Company for publication of quarterly or annual summary statements of sales or earnings of the Company. Any securities so withheld or tendered shall be valued by the Company as of the Tax Date. 8.9 Option Term. Each Option granted hereunder shall expire ten (10) years and two (2) days after the date of grant. 9. MANNER OF EXERCISE (a) An Optionee wishing to exercise an Option shall give written notice to the Company at its principal executive office, to the attention of the officer of the Company designated by the Administrator, accompanied by payment of the exercise price as provided in Section 8.6 and, if required, by payment of any federal or state withholding or employment taxes required to be withheld by virtue of exercise of the Option. The date the Company receives written notice of an exercise hereunder accompanied by payment of the exercise price and any required federal or state withholding or employment taxes will be considered as the date 7 8 such Option was exercised. Unless otherwise provided by the Administrator, options may be exercised only twice in any calendar year. (b) Promptly after the date an Option is exercised, the Company shall, without stock issue or transfer taxes to the optionee or other person entitled to exercise the Option, deliver to the Optionee or such other person a certificate or certificates for the requisite number of shares of Common Stock. An Optionee or transferee of an Optionee shall not have any privileges as a stockholder with respect to any Common Stock covered by the Option until the date of issuance of a stock certificate. 10. NO RIGHT TO DIRECTORSHIP Neither this Plan nor any Option granted hereunder shall confer upon any Optionee any right with respect to continuation of the Optionee's membership on the Board or shall interfere in any way with provisions in the Company's Certificate of Incorporation and By-Laws relating to the election, appointment, terms of office, and removal of members of the Board. 11. FINANCIAL INFORMATION The Company shall provide to each Optionee during the period such optionee holds an outstanding Option a copy of the financial statements of the Company as prepared either by the Company or independent certified public accountants of the Company. Such financial statements shall be delivered as soon as practicable following the end of the Company's fiscal year during the period Options are outstanding. 12. LEGAL REQUIREMENTS The Company shall not be obligated to offer or sell any Shares upon exercise of any Option unless the Shares are at that time effectively registered or exempt from registration under the federal securities laws and the offer and sale of the Shares are otherwise in compliance with all applicable securities laws and the regulations of any stock exchange on which the Company's securities may then be listed. The Company shall have no obligation to register the Shares covered by this Plan under the federal securities laws or take any other steps as may be necessary to enable the Shares covered by this Plan to be offered and sold under federal or other securities laws. Upon exercising all or any portion of an Option, an Optionee may be required to furnish representations or undertaking deemed appropriate by the Company to enable the offer and sale of the Shares or subsequent transfers of any interest in the Shares to comply with applicable securities laws. Certificates evidencing Shares acquired upon exercise of Options shall bear any legend required by, or useful for purposes of compliance with, applicable securities laws, this Plan or the Option Agreements. 8 9 13. AMENDMENTS TO PLAN The Board may amend this Plan at any time. Without the consent of an optionee, no amendment may adversely affect outstanding Options except to conform this Plan and ISOs granted under this Plan to federal or other tax laws relating to incentive stock options. No amendment shall require stockholder approval unless: (a) stockholder approval is required to meet the exemptions provided by Rule 16b-3, or any successor rule thereto; or (b) the Board otherwise concludes that stockholder approval is advisable. 14. STOCKHOLDER APPROVAL; TERM This Plan shall become effective upon adoption by the Board of Directors; provided, however, that no Option shall be exercisable unless and until written consent of holders of a majority of the outstanding shares of capital stock of the Company, or approval by holders of a majority of shares of capital stock of the Company present, or represented, and entitled to vote at a validly called stockholders' meeting (or such greater number as may be required by law or applicable governmental regulations or orders) is obtained within twelve (12) months after adoption by the Board. This Plan shall terminate ten (10) years after adoption by the Board unless terminated earlier by the Board. The Board may terminate this Plan at any time without stockholder approval. No Options shall be granted after termination of this Plan, but termination shall not affect rights and obligations under then outstanding Options. Adopted by the Board of Directors: December 19, 1991. Approved by the Stockholders: February 3, 1992. Amendment to increase shares approved by Board of Directors: December ___, 1997. Amendment to increase shares approved by Stockholders: December 8, 1997. Total number of shares covered by the Plan: 150,000. 9 EX-99.3 6 FORM OF NONQUALIFIED STOCK OPTION AGREEMENT 1 EXHIBIT 99.3 NONQUALIFIED STOCK OPTION AGREEMENT IntelliCorp, Inc. (The "Company") hereby grants to (the "Optionee") a nonqualified option to purchase shares of the Company's common stock at the price of per share. This option is granted under, and is subject to all of the terms and conditions contained in, the Company's 1991 Stock Option Plan (the "Plan"), a copy of which is attached to this Agreement and incorporated into this Agreement by reference. Subject to the terms and conditions of the Plan, this option is exercisable in whole or in part at any time prior to its expiration by (i) execution and delivery to the Company of a notice of option exercise in the form attached hereto and (ii) tender of the option exercise price for the options that are being exercised. In connection with this option grant, the Optionee is required to execute and return to the Company a copy of a Stock Purchase and Restriction Agreement in the form attached to this Agreement. Pursuant to the terms of the Stock Purchase and Restriction Agreement, the Company has certain rights to repurchase, at the exercise price set forth above, the stock purchased by the Optionee pursuant to the exercise of this option. Such repurchase rights shall lapse in cumulative increments as set forth in the Stock Purchase and Restriction Agreement. This option expires at the close of business on the tenth year and two day anniversary of the date of the grant. The option shall not be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code. The Optionee understands that the tax consequences associated with this option and with shares purchasable upon exercise of this option can be complex and can depend, in part, upon the Optionee's particular circumstances and that as a result the Optionee should consult his or her own tax adviser. The Optionee understands that, for example, the exercise of this option can under certain circumstances result in the imposition of tax even before the Optionee sells the option shares. Date of Grant: INTELLICORP, INC. By: ------------------------------------- Kenneth A. Czaja Title: Chief Financial Officer 2 The Optionee hereby accepts and agrees to be bound by all of the terms and conditions of this Nonqualified Stock Option Agreement, including the terms and conditions contained in the Plan and the form of Stock Purchase and Restriction Agreement, and to sign and return one copy of the Stock Purchase and Restriction Agreement. The Optionee acknowledges that this Nonqualified Stock Option Agreement shall bind and inure to the benefit of the Optionee's heirs and legal representatives. ----------------------------------------- (Print or type name) Date: , 199 --------------- -- ----------------------------------------- (Signature) The undersigned spouse of the Optionee hereby consents and agrees to be bound by the terms of this Nonqualified Stock Option Agreement, including the terms and conditions contained in the Plan and the form of Stock Purchase and Restriction Agreement to the extent of the undersigned's interest (whether by community property or otherwise) in this Nonqualified Stock Option Agreement and the shares of common stock to be received upon exercise of this option. ----------------------------------------- (Print or type name) Date: , 199 --------------- -- ----------------------------------------- (Signature) Exhibits: (1) 1991 Stock Option Plan (2) Notice of Option Exercise (3) Stock Purchase and Restriction Agreement -2- -----END PRIVACY-ENHANCED MESSAGE-----