0001095811-01-505374.txt : 20011009
0001095811-01-505374.hdr.sgml : 20011009
ACCESSION NUMBER: 0001095811-01-505374
CONFORMED SUBMISSION TYPE: S-8
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 20011003
EFFECTIVENESS DATE: 20011003
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: 1933 Act
SEC FILE NUMBER: 333-70842
FILM NUMBER: 1751408
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
f76131ors-8.txt
FORM S-8
1
As filed with the Securities and Exchange Commission on October 3, 2001
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 Incorporation or Organization (I.R.S. Employer Identification No.)
1975 El Camino Real West, Suite 101
Mountain View, California 94040-2216
----------------------------------------------------------
(Address of Principal Executive Offices)
2000 Stock Option Plan
2000 Nonemployee Directors Stock Option Plan
Nonqualified Stock Option Agreements
--------------------------------------------------------------
(Full Title of the Plan)
Jerome F. Klajbor
1975 El Camino Real West
Mountain View, California 94040-2216
-----------------------------------------------------------
(Name and Address of Agent For Service)
(650) 965-5500
---------------------------------------------------
(Telephone Number, Including Area Code, of Agent For
Service)
Copy to:
Richard A. Peers
Heller Ehrman White & McAuliffe LLP
275 Middlefield Road
Menlo Park, California 94025-3506
Telephone: (650) 324-7000
Facsimile: (650) 324-0638
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Maximum Proposed Maximum
Amount to be Offering Price per Aggregate Offering Amount of
Title of Securities to be Registered Registered Share(1) Price Registration Fee
----------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.001
per share 5,046,156 $0.41 $2,068,923.90 $517.24
----------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of registration
fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended,
based on he average of the high and low prices of the Registrant's Common
Stock reported on the Nasdaq SmallCap Market on October 1, 2001.
================================================================================
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, 2001 filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) 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;
(c) The registrant's Proxy Statement on Schedule 14A for its 2000
Meeting; and
(d) 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
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 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
II-1
3
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.
II-2
4
ITEM 8
EXHIBITS
Item
No. Description of Item
----------------------------------------------------------------------------------------
5.1 Opinion of Heller Ehrman White & McAuliffe LLP
23.1 Consent of Heller Ehrman White & McAuliffe LLP (filed as part of Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (See page II-6)
99.1 2000 Stock Option Plan
99.2 2000 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.
II-3
5
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.
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-4
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 3rd day
of October, 2001.
INTELLICORP, INC.
By: /s/ Jerome F. Klajbor
------------------------------------
Jerome F. Klajbor, Chief
Financial Officer
II-5
7
POWER OF ATTORNEY TO SIGN AMENDMENT
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below does hereby constitute and appoint Raymond G. Moreau and Jerome F.
Klajbor, 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.
Signature Capacity Date
--------------------------------------- ---------------------------------------------- ----------------------
/s/ Raymond G. Moreau Director and Chief Executive Officer October 3, 2001
------------------------------------ (Principal Executive Officer)
Raymond G. Moreau
/s/ Jerome F. Klajbor Chief Financial Officer and Secretary October 3, 2001
------------------------------------ (Principal Financial Officer)
Jerome F. Klajbor
/s/ Norman J. Wechsler Chairman October 3, 2001
------------------------------------
Norman J. Wechsler
/s/ Kenneth H. Haas Vice Chairman October 3, 2001
------------------------------------
Kenneth H. Haas
/s/ Arthur W. Berry Director October 3, 2001
------------------------------------
Arthur W. Berry
/s/ Elmer F. Fisher Director October 3, 2001
------------------------------------
Elmer F. Fisher
/s/ Robert A. Lauridsen Director
------------------------------------
Robert A. Lauridsen October 3, 2001
II-6
8
EXHIBIT INDEX
Item
No. Description of Item
----------------------------------------------------------------------------------------
5.1 Opinion of Heller Ehrman White & McAuliffe LLP
23.1 Consent of Heller Ehrman White & McAuliffe LLP (filed as part of Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (See page II-6)
99.1 2000 Stock Option Plan
99.2 2000 Nonemployee Directors Stock Option Plan
99.3 Form of Nonqualified Stock Option Agreement
EX-5.1
3
f76131orex5-1.txt
EXHIBIT 5.1
1
[HELLER EHRMAN LOGO]
EXHIBIT 5.1
OPINION OF HELLER EHRMAN WHITE & MCAULIFFE LLP
October 3, 2001
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 or about October 3, 2001 for the purposes of
registering under the Securities Exchange Act of 1933, as amended, an additional
5,046,156 shares (the "Shares") of its $0.001 par value Common Stock, 4,000,000
of which are issuable to employees, directors and consultants under the
Company's 2000 Stock Option Plan (the "2000 Option Plan"), 500,000 of which are
issuable to directors under the 2000 Nonemployee Directors Stock Option Plan
(the "2000 Directors Option Plan", and together with the 2000 Option Plan, the
"Plans") and 546,156 of which are issuable under Nonqualified Stock Option
Agreements.
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.
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 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 October 1, 2001 and certified to us by an
officer of the Company as being complete and in full force as
of the date of this opinion;
(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
2
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 2000 Option Plan;
(f) The 2000 Directors Option Plan;
(g) The Form of Nonqualified Stock Option Agreement; and
(h) A letter from Mellon Investor Services, the Company's transfer
agent, dated October 2, 2001 as to the number of shares of the
Company's Common Stock that were outstanding on October 1,
2001.
This opinion is limited to the Delaware General Corporation Law. We
disclaim any opinion as to any statute, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local government 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, the respective option agreements or the
Nonqualified Stock Option Agreement 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
therefore in the manner provided in the applicable Plan or the Nonqualified
Stock 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 any change of law that occurs, or any facts of
which we may 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 LLP
EX-23.2
4
f76131orex23-2.txt
EXHIBIT 23.2
1
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement (Form S-8)
pertaining to the 2000 Stock Option Plan, 2000 Nonemployee Directors Stock
Option Plan, and Nonqualified Stock Option Agreements of IntelliCorp, Inc. and
to the incorporation by reference therein of our report dated July 27, 2001,
except for Note 11, as to which the date is September 27, 2001, with respect to
the consolidated financial statements of IntelliCorp, Inc. included in its
Annual Report (Form 10-KSB) for the year ended June 30, 2001, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
September 27, 2001
EX-99.1
5
f76131orex99-1.txt
EXHIBIT 99.1
1
EXHIBIT 99.1
2000 STOCK OPTION PLAN
OF
INTELLICORP, INC.
1. PURPOSES OF THE PLAN
The purposes of the 2000 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 its Affiliates; 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 "nonstatutory
options" ("NSOs").
2. ELIGIBLE PERSONS
Employees of the Company or any Affiliate (as defined below) at the
date of grant of an Option are eligible to receive ISOs or NQOs. Consultants and
non-employee directors of the Company or any Affiliate (as defined below) at the
date of grant are eligible to receive only NQOs. The term "Affiliate" as used in
the Plan means a parent or subsidiary corporation as defined in the applicable
provisions 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 total
number of shares of stock which may be issued under options granted pursuant to
this Plan shall be 4,000,000 shares of Common Stock. The shares covered by the
portion of any grant under the Plan which expire unexercised shall become
available again for grants under the Plan.
4. ADMINISTRATION
4.1. General. 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 Board members to
2
which administration of the Plan, or of part of the Plan, is delegated (in
either case, the "Administrator").
4.2 Public Company. From and after such time as the Company registers a
class of equity securities under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Committee shall consist of Board
members who are "Non-Employee Directors" as defined under Rule 16b-3 promulgated
by the Securities and Exchange Commission ("Rule 16b-3"), or any successor rule
thereto.
4.3 Authority of Administrator. 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 accelerate the exercise
date 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.
4.4 Interpretation by Administrator. All questions of interpretation,
implementation, and application of this Plan shall be determined in its absolute
discretion by the Administrator. Such determinations shall be final and binding
on all persons.
4.5 Rule 16b-3. With respect to persons subject to Section 16 of the
Exchange Act, if any, transactions under this Plan are intended to comply with
the applicable conditions of Rule 16b-3, or any successor rule thereto. To the
extent a transaction under this Plan or action by the Administrator fails to so
comply, it shall, to the extent deemed advisable by the Administrator, be
modified to comply with Rule 16b-3. Notwithstanding the above, it shall be the
responsibility of such persons, not of the Company or the Administrator, to
comply with the requirements of Section 16 of the Exchange Act; and neither the
Company nor the Administrator shall be liable if this Plan or any transaction
under this Plan fails to comply with the applicable conditions of Rule 16b-3 or
any successor rule thereto, or if any such person incurs any liability under
Section 16 of the Exchange Act.
3
5. GRANTING OF OPTIONS; OPTION AGREEMENT
5.1 No Options shall be granted under this Plan after ten (10) years
from the date of adoption of this Plan by the Board.
5.2 Each Option shall be evidenced by a written stock option agreement
(the "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 the Option
Agreement shall not invalidate the granting of an Option, although the exercise
of each option shall be subject to Section 6.1.3.
5.3 The Option Agreement shall specify whether each Option it evidences
is an NSO or an ISO.
5.4 Subject to Section 6.3.3 with respect to ISOs, 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 consultants at the date of approval.
6. TERMS AND CONDITIONS OF OPTIONS
Each Option granted under this Plan shall be subject to the terms and
conditions set forth in Section 6.1. NQOs shall be also 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.
6.1 Terms and Conditions to Which All Options Are Subject. Options
granted under this Plan shall be subject to the following terms and conditions:
6.1.1 Changes in Capital. Subject to Section 6.1.2, if the stock of
the Company is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, combination or reclassification, appropriate
adjustments shall be made by the Board in (a) the number and class of shares of
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 Board in
its absolute discretion.
6.1.2 Corporate Transactions. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
optionee at least thirty (30) days prior to such proposed action. To the extent
not previously exercised, all Options will terminate immediately prior to the
consummation of such proposed action. In the event of a merger or consolidation
of the Company with or into another corporation or entity, or in the event of a
sale of all or substantially all of the assets of the Company in which the
stockholders of the Company receive securities of the acquiring entity or an
affiliate thereof, 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
for more than six (6) months but less than one (1) 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
4
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. Subject to Section 5 and Section
6.3.4, Options granted under this Plan shall be exercisable (a) immediately as
of the effective date of the Option Agreement granting the Option, or (b) in
accordance with a schedule related to the date of the grant of the Option, the
date of first employment, or such other date as may be set by the Administrator
(in any case, the "Vesting Base Date") and specified in the Option Agreement
relating to such Option; provided, however, that the right to exercise an Option
must vest at the rate of at least 20% per year over five years from the date the
option was granted. Options granted to officers, directors or consultants may
become fully exercisable, subject to reasonable conditions such as continued
employment, at any time or during any period established by the Board of the
Administrator in accordance with this Plan. In any case, no Option shall be
exercisable until a written 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 5.4, the date of grant of an Option under this Plan shall
be the date as of which the Administrator approves the grant.
6.1.5 Nonassignability of Option Rights. Except as otherwise
determined by the Administrator and expressly set forth in the Option Agreement,
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.
During the life of the optionee, except as otherwise determined by the
Administrator and expressly set forth in the Option Agreement, 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 after considering any
tax or accounting consequences, 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, 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
would be imputed and in no event more than the maximum interest rate allowed
under applicable usury laws), 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); and
(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
5
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 without the consent of the Administrator.
6.1.7 Termination of Employment.
(a) If, for any reason other than death, disability or
"cause" (as defined below), an optionee ceases to be employed by the Company or
any of its Affiliates (such event being called a "Termination"), Options held at
the date of Termination (to the extent then exercisable) may be exercised in
whole or in part at any time within ninety (90) days of the date of such
Termination, or such other period of not less than thirty (30) days after the
date of such Termination as is specified in the Option Agreement (but in no
event after the Expiration Date).
(b) If an optionee dies or becomes disabled (within the
meaning of Section 22(c)(3) of the Code) while employed by the Company or an
Affiliate or within the period that the Option remains exercisable after
Termination, Options then held (to the extent then exercisable) may be
exercised, in whole or in part, by the optionee, by the optionee's personal
representative or by the person to whom the Option is transferred by devise or
the laws of descent and distribution, at any time within twelve (12) months
after the death or twelve (12) months after the disability of the optionee, or
such other period of not less than six (6) months from the date of Termination
as is specified in the Option Agreement (but in no event after the Expiration
Date).
(c) If an optionee is terminated for "cause," all Options
then held shall terminate and no longer be exercisable as of the date of
Termination.
(d) For purposes of this Section 6.1.7, "employment" includes
service as a director or as a consultant.
(e) For purposes of this Section 6.1.7, an optionee's
employment shall not be deemed to terminate by reason of sick leave, military
leave or other leave of absence approved by the Administrator, if the period of
any such leave does not exceed ninety (90) days or, if longer, if the optionee's
right to reemployment by the Company or any Affiliate is guaranteed either
contractually or by statute.
(f) For purposes of this Section 6.1.7, "cause" shall mean
Termination (i) by reason of optionee's commission of a felony, misdemeanor or
other illegal conduct involving dishonesty, fraud or other matters of moral
turpitude, (ii) by reason of optionee's dishonesty towards, fraud upon, or
deliberate injury or attempted injury to the Company or any of its Affiliates,
or (iii) by reason of optionee's willfully engaging in misconduct which is
materially and demonstrably injurious to the Company or any of its Affiliates.
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
6
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.
6.1.9 Withholding and Employment Taxes. At the time of exercise of
an Option or at such other time as the amount of such obligations becomes
determinable (the "Tax Date"), 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 absolute discretion, after considering any tax or
accounting consequences, an optionee may elect to (i) deliver a full recourse
promissory note on such terms as the Administrator deems appropriate, (ii)
tender to the Company previously owned shares of Stock or other securities of
the Company, or (iii) have shares of Common Stock which are acquired upon
exercise of the Option withheld by the Company to pay some or all of the amount
of tax that is required by law to be withheld by the Company as a result of the
exercise of such Option. Any election pursuant to clause (ii) above, where the
optionee is tendering Common Stock issued pursuant to the exercise of an Option,
shall require that such shares have been held at least six (6) months prior to
the Tax Date. Any securities tendered or withheld in accordance with this
Section 6.1.9 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 Determination of Value. For purposes of the Plan, the value
of Common Stock or other securities of the Company shall be determined as
follows:
(a) If the stock of the Company is listed on any established
stock exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotation 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 system or exchange (or the largest such exchange) for the date the value is
to be determined (or if there are no sales for such date, then for the last
preceding business day on which there were sales), as reported in the Wall
Street Journal or similar publication.
7
(b) If the stock of the Company is 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
stock on the date the value is to be determined (or if there are no quoted
prices for the date of grant, then for the last preceding business day on which
there were quoted prices).
(c) In the absence of an established market for the stock,
the fair market value thereof shall be determined in good faith by the
Administrator, by consideration of such factors as the Administrator in its
discretion deems appropriate among the recent issue price of other securities of
the Company, the Company's net worth, prospective earning power, dividend-paying
capacity, and other relevant factors, including the goodwill of the Company, the
economic outlook in the Company's industry, the Company's position in the
industry and its management, and the values of stock of other corporations in
the same or a similar line of business.
6.1.12 Option Term. Subject to Section 6.3.5, no NQO shall be
exercisable more than ten (10) years and two (2) days after the date of grant 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 stock option agreement (the
end of the maximum exercise period stated in the Option Agreement is referred to
in this Plan as the "Expiration Date").
6.1.13 Exercise Price. The exercise price of any Option granted to
any person who owns, directly or by attribution under the Code currently Section
424(d), stock possessing more than ten percent 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 the fair market value
(determined in accordance with Section 6.1.11) of the stock covered by the
Option at the time the Option is granted.
6.2 Terms and Conditions to Which Only NQOs Are Subject. Except as set
forth in Section 6.1.13, the exercise price of a NQO shall be not less than 85%
of the fair market value (determined in accordance with Section 6.1.11) of the
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. Except as set forth in Section 6.1.13, 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
(determined in accordance with Section 6.1.11) of the stock covered by the
Option at the time the Option is granted.
6.3.2 Disqualifying Dispositions. If stock acquired by exercise of
an ISO granted pursuant to this Plan 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 promptly notify the Company in
writing of the date and terms of the disposition and shall provide such other
information regarding the Option as the Company may reasonably require.
8
6.3.3 Grant Date. If an ISO is granted in anticipation of
employment as provided in Section 5.4, the Option shall be deemed granted,
without further approval, on the date the grantee assumes the employment
relationship forming the basis for such grant, and, in addition, satisfies all
requirements of this Plan for Options granted on that date.
6.3.4 Vesting. Notwithstanding any other provision of this Plan,
ISOs granted under all incentive stock option plans of the Company and its
subsidiaries may not "vest" for more than $100,000 in fair market value of stock
(measured on the grant dates(s)) in any calendar year. For purposes of the
preceding sentence, an option "vests" when it first becomes exercisable. If, by
their terms, such ISOs taken together would vest to a greater extent in a
calendar year, and unless otherwise provided by the Administrator, ISOs with
lower exercise prices shall vest before ISOs with higher exercise prices,
regardless of the grant date.
6.3.5 Term. Notwithstanding Section 6.1.12, no ISO granted to any
Ten Percent Stockholder shall be exercisable more than five (5) years after the
date of grant.
7. MANNER OF EXERCISE
7.1 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. The date the Company
receives written notice of an exercise hereunder accompanied by payment of the
exercise price will be considered as the date such Option was exercised.
7.2 Promptly after receipt of written notice of exercise of an Option,
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
stock. An optionee or permitted transferee of an optionee shall not have any
privileges as a stockholder with respect to any shares of stock covered by the
Option until the date of issuance (as evidenced by the appropriate entry on the
books of the Company or a duly authorized transfer agent) of such shares.
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, and to each holder of Common Stock
acquired upon exercise of Options granted under the Plan for so long as such
person is a holder of such Common Stock, annual financial statements of the
Company as prepared either by the Company or independent certified public
accountants of the Company. Such financial statements shall include, at a
minimum, a balance sheet and an income statement, and shall be delivered as soon
as practicable following the end of the Company's fiscal year.
9
10. CONDITIONS UPON ISSUANCE OF SHARES
Shares of Common Stock shall not be issued pursuant to the exercise of
an Option unless the exercise of such Option and the issuance and delivery of
such shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the Securities Act of 1933, as amended (the
"Securities Act").
11. NONEXCLUSIVITY OF THE PLAN
The adoption of the Plan shall not be construed as creating any
limitations on the power of the Company to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options other than under the Plan.
12. MARKET STANDOFF
Each Optionee, if so requested by the Company or any representative of
the underwriters in connection with any registration of the offering of any
securities of the Company under the Securities Act of 1933, as amended (the
"Securities Act"), shall not sell or otherwise transfer any shares of Common
Stock acquired upon exercise of Options during the 180-day period following the
effective date of a registration statement of the company filed under the
Securities Act; provided, however, that such restriction shall apply only to the
first two registration statements of the Company to become effective under the
Securities Act which includes securities to be sold on behalf of the Company to
the public in an underwritten public offering under the Securities Act. The
Company may impose stop-transfer instructions with respect to securities subject
to the foregoing restriction until the end of such 180-day period.
13. AMENDMENTS TO PLAN
The Board may at any time amend, alter, suspend or discontinue this
Plan. Without the consent of an optionee, no amendment, alteration, suspension
or discontinuance may adversely affect outstanding Options except to conform
this Plan and ISOs granted under this Plan to the requirements of federal or
other tax laws relating to incentive stock options. No amendment, alteration,
suspension or discontinuance shall require stockholder approval unless (a)
stockholder approval is required to preserve incentive stock option treatment
for federal income tax purposes, or (b) the Board otherwise concludes that
stockholder approval is advisable.
14. EFFECTIVE DATE OF PLAN
This Plan shall become effective upon adoption by the Board provided,
however, that no Option shall be exercisable unless and until written consent of
the stockholders of the Company, or approval of stockholders of the Company
voting at a validly called stockholders' meeting, is obtained within twelve (12)
months after adoption by the Board. If such stockholder approval is not obtained
within such time, Options granted hereunder shall terminate and be of no force
and effect from and after expiration of such twelve (12) month period. Options
may be granted and exercised under this Plan only after there has been
compliance with all applicable federal and state securities laws.
10
Plan adopted by the Board of Directors on October 13, 2000.
Plan approved by Stockholders on December 5, 2000.
EX-99.2
6
f76131orex99-2.txt
EXHIBIT 99.2
1
EXHIBIT 99.2
2000 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
OF
INTELLICORP INC.
1. PURPOSES OF THE PLAN
The purposes of the 2000 Nonemployee Directors Stock Option Plan of
IntelliCorp Inc., a Delaware corporation, are: (a) to encourage Nonemployee
Directors to accept or continue their association with the Company; and (b) to
increase the interest of Nonemployee Directors in the Company's operations and
increased profits through participation in the growth in value of the Common
Stock of the Company.
2. DEFINITIONS
As used herein, the following definitions shall apply:
(a) "Administrator" shall mean the entity, either the Board or a
committee appointed by the Board, responsible for administering this Plan, as
provided in Section 5.
(b) "Affiliate" shall mean a parent or subsidiary corporation as
defined in the applicable provisions of the Code.
(c) "Annual Option" shall have the meaning set forth in Section 6(b).
(d) "Board" shall mean the Board of Directors of the Company, as
constituted from time to time.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Common Stock" shall mean the Common Stock of the Company.
(g) "Company" shall mean IntelliCorp, Inc., a Delaware corporation.
(h) "Director Fee" shall mean the cash amount, if any, a Nonemployee
Director shall be entitled to receive for serving as a director of the Company
in any fiscal year.
(i) "Fair Market Value" shall mean, as of the date in question, the
last transaction price quoted by the Nasdaq National Market System or Nasdaq
Small Cap Market System on the date of grant; provided, however, that if the
Common Stock is not traded on such market system or the foregoing shall
otherwise 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.
(j) "Initial Option" shall have the meaning set forth in Section 6(a).
2
(k) "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.
(l) "Option" shall mean a stock option granted pursuant to this Plan.
(m) "Option Agreement" shall mean the written agreement described in
Section 6(c) evidencing the grant of an Option to a Nonemployee Director and
containing the terms, conditions and restrictions pertaining to such Option.
(n) "Option Shares" shall mean the Shares subject to an Option granted
under this Plan.
(o) "Optionee" shall mean a Nonemployee Director who holds an Option.
(p) "Parent" shall mean a "parent corporation," whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(q) "Plan" shall mean this 2000 Nonemployee Directors Stock Option Plan
of IntelliCorp, Inc., as it may be amended from time to time.
(r) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities
and Exchange Commission, or any successor rule thereto.
(s) "Section" unless the context clearly indicates otherwise, shall
refer to a Section of this Plan.
(t) "Share" shall mean a share of Common Stock, as adjusted in
accordance with Section 8(a).
(u) "Subsidiary" shall mean a "subsidiary corporation" of the Company,
whether now or hereafter existing, within the meaning of Section 424(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(a) of this Plan, the maximum aggregate number of
Shares which may be issued on exercise of Options granted pursuant to this Plan
is 500,000 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.
3
5. ADMINISTRATION
(a) This Plan shall be administered by the Board, or by a committee
(the "Committee") of at least two Board members to which administration of the
Plan is delegated (in either case, the "Administrator"), in accordance with the
requirements of Rule 16b-3.
(b) Subject to the other provisions of this 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.
6. GRANT OF OPTIONS
(a) Grant for Initial Election or Appointment to Board. Subject to the
terms and conditions of this Plan, beginning at any time after the Company's
2001 Annual Stockholder's meeting, if any person who is not an officer or
employee of the Company is first elected or appointed as a member of the Board
and is otherwise considered a "Nonemployee Director" as defined herein, then the
Company shall grant to such Nonemployee Director on such day an Option to
purchase 25,000 Shares ("Initial Option") at an exercise price equal to the Fair
Market Value of such Shares on the date of such Initial Option grant, subject to
the limitation of Section 8(i).
(b) Grant for Re-election to Board. 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 beginning with the
Company's 2001 Annual Stockholders Meeting (even if held on the same day as the
meeting of stockholders) the Company shall grant to each Nonemployee Director
then in office for longer than six months, an Option to purchase 10,000 shares
(the "Annual Option") at an exercise price equal to the Fair Market Value of
such Shares.
(c) No Option shall be granted under this Plan after ten (10) years and
two (2) days from the date of adoption of this Plan by the Board. Each Option
shall be evidenced by a written Option Agreement, in form and substance
satisfactory to the Company, executed by the Company and the Optionee. Failure
by the Company, the Nonemployee Director, or both to execute an Option Agreement
shall not invalidate the granting of an Option; however, the Option may not be
exercised until the Option Agreement has been executed by both parties.
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
4
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 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.
(a) Changes in Capital Structure. Subject to subsection 8(b), if the
Common Stock is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation, or reorganization,
appropriate adjustments shall be made in: (i) the number and class of shares of
Common Stock subject to this Plan and each Option outstanding under this Plan;
and (ii) 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 adjustment. Each such adjustment shall be subject to approval by the
Administrator in its sole discretion.
(b) Corporate Transactions. In the event of a merger, consolidation,
reorganization, similar transaction or series of related transactions in which
the holders of the Company's outstanding shares immediately before such
transaction or series of transactions do not, immediately after such transaction
or series of transactions, retain stock representing a majority of the voting
power of the surviving entity or in the event of a sale of all or substantially
all of the assets of the Company, all outstanding Options shall become vested,
and any right of repurchase shall lapse, immediately prior to the consummation
of such transaction, and each Option shall thereafter remain exercisable for a
period of thirty days from the consummation of such transaction.
(c) Time of Option Exercise. Subject to the other provisions of this
Plan, each Option shall be for a term of ten (10) years and two (2) days. Each
Option shall be exercisable in full on the date of grant.
(d) Limitation on Other Grants. The Administrator shall have no
discretion to grant Options under this Plan other than as set forth in Sections
8(a) and 8(b).
(e) Nonassignability of Option Rights. No Option shall be assignable or
otherwise transferable by the Optionee, except by will or the laws of descent
and distribution. During the life of an Optionee, an Option shall be exercisable
only by the Optionee.
(f) 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
5
Company, and proceeds of any payment shall constitute general funds of the
Company. Payment may also be made pursuant to a cashless exercise/sale
procedure. At the time an Option is granted or exercised, the Administrator, in
its absolute discretion, may authorize any one or more of the following
additional methods of payment: (i) acceptance of the Optionee's full recourse
promissory note for all or part of the Option price, less any 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); (ii)
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 (iii) any other consideration and method of payment to the
extent permitted under the Delaware General Corporation Law.
(g) 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: (i) the expiration of
the term of the Option; or (ii) 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 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.
(h) Withholding and Employment Taxes. At the time of exercise of an
Option (or at such later time(s) as the Administrator 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 withholding taxes due. Any securities so withheld or tendered
shall be valued by the Company as of the Tax Date.
(i) Option Term. Each Option shall expire ten years (10) and two (2)
days after the date of grant.
(j) Exercise Price. The exercise price of any Option granted to any
person who owns, directly or by attribution under the Code currently Section
424(d), stock possessing more than
6
ten percent 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 the fair market value (determined in accordance with 2(i) of
the stock covered by the Option at the time the Option is granted.
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(e) and, if required, by payment
of any federal or state withholding or employment taxes required to be withheld
due to exercise of the Option. The date the Company receives written notice of
an exercise 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. 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 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, as amended, and Bylaws, as amended, relating to the election,
appointment, terms of office, and removal of members of the Board.
11. 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
undertakings 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.
12. AMENDMENTS TO PLAN
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The Board may amend this Plan at any time. Without the consent of an
optionee, no amendment may adversely affect outstanding 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 under applicable state statutes; or
(b) The Board otherwise concludes that stockholder approval is
advisable.
13. 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: October 13, 2000
Approved by the Stockholders: December 5, 2000
EX-99.3
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f76131orex99-3.txt
EXHIBIT 99.3
1
EXHIBIT 99.3
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made and entered
into as of this [grant date] between INTELLICORP, INC., a Delaware corporation
(the "Company"), and [name] (the "Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. Grant of Options. IntelliCorp, Inc. (the "Company") hereby grants to
[name] (the "Optionee") a non-qualified option to purchase [shares] of
the Company's common stock (subject to adjustment in the event of any
stock split or the like) at the price of [price] per share. This option
grant has been authorized by the Company's Board of Directors. This
option is not an "incentive stock option" within the meaning of Section
422 of the Internal Revenue Code and shall be treated as a
"non-qualified stock option" for federal income tax purposes.
2. Vesting. The option shall be exercisable with respect to 25% of the
total number of option shares one year after the grant date and,
thereafter, with respect to an additional 6.25% of such total number of
option shares on a quarterly basis, so long as Optionee remains an
employee of the Company as of such date, so that, subject to Section 5,
all option shares may be purchased on and after the fourth anniversary
of the date of grant.
3. Term. This option expires at the close of business on the tenth year
and two day anniversary of the date of grant.
4. Tax Consequences 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.
5. Option Exercise. 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 so long as Optionee remains an employee of the Company. If
Optionee's employment with the Company terminates for any reason,
vesting under Section 2 above shall cease immediately on such
termination and such option shall be exercisable, to the extent vested,
for a period of ninety days after such termination. To the extent not
exercised within such ninety day period, such option shall expire.
6. Delivery of Shares. Promptly after receipt of the Notice of Option
Exercise and the option exercise price, the Company shall deliver to
the Optionee a certificate or certificates for the requisite number of
option shares.
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7. Subsequently Issued Shares. This Agreement shall be deemed to include
as Shares, any or other securities issued to Optionee in connection
with stock splits, stock dividends, recapitalizations, mergers,
combinations or sales of assets of the Company.
8. Representations, Warranties, Covenants, and Acknowledgments of Optionee
Upon Exercise Of Option. Optionee hereby agrees that in the event that
the Company and the Company's counsel deem it necessary or advisable in
the exercise of their discretion, the issuance of option shares may be
conditioned upon certain representations, warranties, and
acknowledgments by the person exercising the option shares (the
"Purchaser"), including, without limitation, those set forth in
Sections 8.1 through 8.3 inclusive:
8.1 Relation to Company. Purchaser is presently an officer,
director, or other employee of, or consultant to the Company,
and in such capacity has become personally familiar with the
business, affairs, financial condition, and results of
operations of the Company.
8.2 Access to Information. Purchaser has had the opportunity to
ask questions of, and to receive answers from, appropriate
executive officers of the Company with respect to the terms
and conditions of the transaction contemplated hereby and with
respect to the business, affairs, financial condition, and
results of operations of the Company. Purchaser has had access
to such financial and other information as is necessary in
order for Purchaser to make a fully-informed decision as to
investment in the Company by way of purchase of the option
shares, and has had the opportunity to obtain any additional
information necessary to verify any of such information to
which Purchaser has had access.
8.3 Tax Advice. The Company has made no warranties or
representations to Purchaser with respect to the income tax
consequences of the transactions contemplated by the agreement
pursuant to which the option shares will be purchased and
Purchaser is in no manner relying on the Company or its
representatives for an assessment of such tax consequences.
9. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly
given on the date of service if served personally or on the date of
mailing if mailed by first class mail, registered or certified, postage
prepaid and addressed to the parties at the addresses set forth below
their signatures. Addresses or names of persons may be changed from
time to time by notice given in accordance with this Section.
10. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, successors, and
assigns of the parties; provided, however, that the Optionee may not
assign any of Optionee's rights or obligations under this Agreement.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with laws of the State of California.
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12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties pertaining to the repurchase of the Shares and supersedes
all other agreements, representations and understandings of the parties
relating to such matters, whether prior or contemporaneous.
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
INTELLICORP, INC. OPTIONEE:
1975 El Camino Real West
Mountain View, CA 94040-2216
By:
-------------------------- ----------------------------
(Signature)
Name: Jerome F. Klajbor
Address:
--------------------
----------------------------
Title: Chief Financial Officer
The undersigned spouse of the Optionee hereby consents and agrees to be bound by
the terms of this Nonqualified Stock Option 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.
Date: , 200 . ----------------------------
(print or type name)
----------------------------
(Signature)
Exhibits: (1) Notice of Option Exercise