-----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, WmrZkYSBuDJxwJ5EaaWxlM95U6HfY4kjs94HECS9+uRstM/kUWqJGWrENhIG4PYJ U9UEwI2NhkA7phSq/X/ckQ== 0000799089-96-000006.txt : 19960305 0000799089-96-000006.hdr.sgml : 19960305 ACCESSION NUMBER: 0000799089-96-000006 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19960304 EFFECTIVENESS DATE: 19960323 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INFORMIX CORP CENTRAL INDEX KEY: 0000799089 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943011736 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-01409 FILM NUMBER: 96530872 BUSINESS ADDRESS: STREET 1: 4100 BOHANNON DR CITY: MENLO PARK STATE: CA ZIP: 94025 BUSINESS PHONE: 4159266300 MAIL ADDRESS: STREET 1: 4100 BOHANNON DRIVE CITY: MENLOW PARK STATE: CA ZIP: 94025 S-8 1 As filed with the Securities and Exchange Commission on March 1, 1996 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 INFORMIX CORPORATION (Exact name of Registrant as specified in its charter) Delaware (State of incorporation) 94-3011736 (I.R.S. Employer Identification No.) 4100 Bohannon Drive Menlo Park, California 94025 (Address, including zip code, of Registrant's principal executive offices) ILLUSTRA INFORMATION TECHNOLOGIES, INC. 1992 EQUITY INCENTIVE PLAN AND OTHER OPTIONS (Full title of the plan) DAVID H. STANLEY Vice President, Legal and Corporate Services, General Counsel and Secretary INFORMIX CORPORATION 4100 Bohannon Drive Menlo Park, California 94025 (415) 926-6300 (Name, address, and telephone number, including area code, of agent for service) Copies to: ROGER E. GEORGE, ESQ. Wilson, Sonsini, Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 (415) 493-9300 CALCULATION OF REGISTRATION FEE
Proposed Proposed Title of Each Maximum Maximum Class of Amount Offering Aggregate Amount of Securities to to be Price Offering Registration be Registered Registered Per Share Price(1) Fee(1) Common Stock($0.01 par value) 2,295,716 $28.10 $7,106,071 $2,451
(1) Calculated in accordance with Rule 457(h)(1) based on the aggregate exercise price of the stock options. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. There are hereby incorporated by reference the following documents and information heretofore filed with the Securities and Exchange Commission: Item 3(a). The Annual Report of Registrant on Form 10-K for the fiscal year ended December 31, 1994 filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Item 3(b). All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in (a) above which other reports specifically include Registrant's Current Report on Form 8-K filed on February 8, 1996 and Registrant's Current Report on Form 8-K filed on March 1, 1996. Item 3(c). The description of the Registrant's Common Stock which is contained in Registrant's Registration Statement on Form S-4 dated February 7, 1996, (Registration No. 333-143) on pages 89 through 90 and any amendment or report filed for the purpose of updating such description. All documents, reports and definitive proxy or information statements subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934, prior to the filing of a post- effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Delaware law authorizes corporations to eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breach or alleged breach of the director's duty of care. While the relevant statute does not change directors' duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on director's duty of loyalty, acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law, illegal payment of dividends and approval of any transaction from which a director derives an improper personal benefit. The Company has adopted provisions in its Certificate of Incorporation which eliminate the personal liability of directors for monetary damages for breach or alleged breach of their duty of due care. The By-laws of the Company provide for indemnification of its directors and officers to the full extent permitted by the General Corporation Law of the State of Delaware, the Company's state of incorporation, including those circumstances in which indemnification would be discretionary under Delaware law. The Company has entered into indemnification agreements with its directors and executive officers. Section 145 of the General Corporation Law of the State of Delaware provides for indemnification in terms sufficiently broad to indemnify such individuals, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933. The Company also carries insurance policies in standard form indemnifying its directors and officers against liabilities arising from certain acts performed by them in their respective capacities as such. The policies also provide for reimbursement of the Company for certain amounts it may be required or permitted to pay pursuant to applicable law to its directors and officers on account of such liabilities. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Document 4.1 Illustra Information Technologies, Inc. 1992 Equity Incentive Plan. 4.2 Form of 1992 Equity Incentive Plan Incentive Option Agreement. 4.3 Form of 1992 Equity Incentive Plan Nonstatutory Stock Option Agreement. 4.4 Form of 1992 Equity Incentive Plan Early Exercise Stock Purchase Agreement. 4.5 Form of Nonstatutory Stock Option Agreement. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. 23.1 Consent of Independent Auditors, KPMG Peat Marwick LLP. 23.2 Consent of Independent Auditors, Ernst & Young LLP. 23.3 Consent of Counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (included in the signature page of this Registration Statement). Item 9. Undertakings. (a) Rule 415 Offering. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bonafide 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) Filings Incorporating Subsequent Exchange Act Documents by Reference. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement relating to securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Request For Acceleration of Effective Date or Filing of Registration Statement on Form S-8. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to provisions described in Item 6 hereof, 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Menlo Park, State of California, on the 1st day of March, 1996. INFORMIX CORPORATION By: /s/ Phillip E. White PHILLIP E. WHITE President, Chief Executive Officer and Chairman of the Board POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints, jointly and severally, David H. Stanley, Howard H. Graham and Richard C. Blass, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorney to any and all amendments to said Registration Statement. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated: Signature Title Date /s/PHILLIP E. WHITE President, Chief Executive Officer March 1, 1996 Phillip E. White and Chairman of the Board of Directors (Principal Executive Officer) /s/HOWARD H. GRAHAM Vice President, Finance and Chief March 1, 1996 Howard H. Graham Financial Officer (Principal Financial Officer) /s/RICHARD C. BLASS Vice President, Corporate Controller March 1, 1996 Richard C. Blass and Chief Accounting Officer (Principal Accounting Officer) /s/ALBERT F. KNORP, JR. Director March 1, 1996 Albert F. Knorp, Jr. /s/JAMES L. KOCH Director March 1, 1996 James L. Koch /s/THOMAS A. McDONNELL Director March 1, 1996 Thomas A. McDonnell /s/CYRIL J. YANSOUNI Director March 1, 1996 Cyril J. Yansouni INDEX TO EXHIBITS Exhibit Number Exhibit 4.1 Illustra Information Technologies, Inc. 1992 Incentive Equity Plan 4.2 Form of 1992 Equity Incentive Plan Incentive Option Agreement. 4.3 Form of 1992 Equity Incentive Plan Nonstatutory Stock Option Agreement. 4.4 Form of 1992 Equity Incentive Plan Early Exercise Stock Purchase Agreement. 4.5 Form of Nonstatutory Stock Option Agreement. 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation 23.1 Consent of Independent Auditors, KPMG Peat Marwick LLP 23.2 Consent of Independent Auditors, Ernst & Young LLP 23.3 Consent of Counsel (included in Exhibit 5.1) 24.1 Power of Attorney (included in signature page to this Registration Statement) EX-4.1 2 Exhibit 4.1 ILLUSTRA INFORMATION TECHNOLOGIES, INC. 1992 EQUITY INCENTIVE PLAN Adopted August 5, 1992 amended December 8, 1992 amended August 12, 1993 amended April 19, 1994 amended April 28, 1995 amended December 7, 1995 1. PURPOSES. (a) The purpose of the 1992 Equity Incentive Plan (the "Plan") is to provide a means by which employees or directors of or consultants to the Company, and its Affiliates, may be given an opportunity to benefit from increases in value of the stock of the Company through the granting of (i) Incentive Stock Options, (ii) Nonstatutory Stock Options, and (iii) rights to purchase stock, all as defined. (b) The Company, by means of the Plan, seeks to retain the services of persons who are now Employees or Directors of or Consultants to the Company, to secure and retain the services of new Employees, Directors and Consultants, and to provide incentives for such persons to exert maximum efforts for the success of the Company. (c) The Company intends that the Stock Awards issued under the Plan shall, in the discretion of the Board or any Committee to which responsibility for administration of the Plan has been delegated pursuant to subsection 3(c), be either (i) Options granted pursuant to paragraph 6 hereof, including Incentive Stock Options and Nonstatutory Stock Options, or (ii) rights to purchase stock granted pursuant to paragraph 7 hereof. All Options shall be separately designated Incentive Stock Options or Nonstatutory Stock Options at the time of grant, and in such form as issued pursuant to section 6, and a separate certificate or certificates will be issued for shares purchased on exercise of each type of Option. 2. DEFINITIONS. (a) "Affiliate" means any parent corporation or subsidiary corporation, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f) respectively, of the Code. (b) "Board" means the Board of Directors of the Company. (c) "Code" means the Internal Revenue Code of 1986, as amended. (d) "Committee" means a Committee appointed by the Board in accordance with subsection 3(c) of the Plan. (e) "Company" means ILLUSTRA INFORMATION TECHNOLOGIES, INC., a Delaware corporation. (f) "Consultant" means any person, including an advisor, engaged by the Company or an Affiliate to render services and who is compensated for such services, provided that the term "Consultant" shall not include Directors who are paid only a director's fee by the Company or who are not compensated by the Company for their services as Directors. (g) "Director" means a member of the Board. (h) "Disability" means total and permanent disability as defined in Section 22(e)(3) of the Code. (i) "Disinterested Person" means a Director: (i) who was not during the one year prior to service as an administrator of the Plan granted or awarded equity securities pursuant to the Plan or any other plan of the Company or any of its affiliates entitling the participants therein to acquire equity securities of the Company or any of its affiliates except as permitted by Rule 16b-3(c)(2)(i); or (ii) who is otherwise considered to be a "disinterested person" in accordance with Rule 16b-3(c)(2)(i), or any other applicable rules, regulations or interpretations of the Securities and Exchange Commission. (j) "Employee" means any person, including Officers and Directors, employed by the Company or any Affiliate of the Company. Neither service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute "employment" by the Company. (k) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (l) "Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder. (m) "Nonstatutory Stock Option" means an Option not intended to qualify as an Incentive Stock Option. (n) "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. (o) "Option" means a stock option granted pursuant to the Plan. (p) "Option Agreement" means a written agreement between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan. (q) "Optionee" means an Employee, Director or Consultant who holds an outstanding Option. (r) "Plan" means this 1992 Equity Incentive Plan. (s) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan. (t) "Stock Award" means any right granted under the Plan, including any Option, and any right to purchase stock. (u) "Stock Award Agreement" means a written agreement between the Company and a holder of a Stock Award evidencing the terms and conditions of an individual Stock Award grant. The Stock Award Agreement is subject to the terms and conditions of the Plan. 3. ADMINISTRATION. (a) The Plan shall be administered by the Board unless and until the Board delegates administration to a Committee, as provided in subsection 3(c). (b) The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: (1) To determine from time to time which of the persons eligible under the Plan shall be granted Stock Awards; when and how Stock Awards shall be granted; whether a Stock Award will be an Incentive Stock Option, a Nonstatutory Stock Option, a right to purchase stock, or a combination of the foregoing; the provisions of each Stock Award granted (which need not be identical), including the time or times when a person shall be permitted to receive stock pursuant to a Stock Award; and the number of shares with respect to which Stock Awards shall be granted to each such person. (2) To construe and interpret the Plan and Stock Awards granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (3) To amend the Plan as provided in Section 14. (c) The Board may delegate administration of the Plan to a committee composed of not fewer than two (2) members (the "Committee"), all of the members of which Committee shall be disinterested persons, if required and as defined by the provisions of subsection 3(d). If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board (and references in this Plan to the Board shall thereafter be to the Committee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. Additionally, prior to the date of the first registration of an equity security of the Company under Section 12 of the Exchange Act, and notwithstanding anything to the contrary contained herein, the Board may delegate administration of the Plan to any person or persons and the term "Committee" shall apply to any person or persons to whom such authority has been delegated. (d) Any requirement that an administrator of the Plan be a Disinterested Person shall not apply (i) prior to the date of the first registration of an equity security of the Company under Section 12 of the Exchange Act, or (ii) if the Board or the Committee expressly declares that such requirement shall not apply. Any Disinterested Person shall otherwise comply with the requirements of Rule 16b-3. 4. SHARES SUBJECT TO THE PLAN. (a) Subject to the provisions of Section 13 relating to adjustments upon changes in stock, the stock that may be issued pursuant to Stock Awards shall not exceed in the aggregate four million six hundred fifty-seven thousand five hundred (4,657,500) shares of the Company's common stock. If any Stock Award shall for any reason expire or otherwise terminate without having been exercised in full, the stock not purchased under such Stock Award shall again become available for the Plan. [amended August 12, 1993, April 19, 1994, April 28, 1995 and December 7, 1995] (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. 5. ELIGIBILITY. (a) Incentive Stock Options may be granted only to Employees. Stock Awards other than Incentive Stock Options may be granted only to Employees, Directors or Consultants. (b) A Director shall in no event be eligible for the benefits of the Plan unless at the time discretion is exercised in the selection of the Director as a person to whom Stock Awards may be granted, or in the determination of the number of shares which may be covered by Stock Awards granted to the Director: (i) the Board has delegated its discretionary authority over the Plan to a Committee which consists solely of Disinterested Persons; or (ii) the Plan otherwise complies with the requirements of Rule 16b-3. The Board shall otherwise comply with the requirements of Rule 16b-3. This subsection 5(b) shall not apply (i) prior to the date of the first registration of an equity security of the Company under Section 12 of the Exchange Act, or (ii) if the Board or Committee expressly declares that it shall not apply. (c) No person shall be eligible for the grant of an Option if, at the time of grant, such person owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any of its Affiliates unless the exercise price of such Option is at least one hundred ten percent (110%) of the fair market value of such stock at the date of grant and the Option is not exercisable after the expiration of five (5) years from the date of grant. [amended December 8, 1992] 6. OPTION PROVISIONS. Each Option shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The provisions of separate Options need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option or otherwise) the substance of each of the following provisions: (a) Term. No Option shall be exercisable after the expiration of ten (10) years from the date it was granted. (b) Price. The exercise price of each Incentive Stock Option shall be not less than one hundred percent (100%) of the fair market value of the stock subject to the Option on the date the Option is granted. The exercise price of each Nonstatutory Stock Option shall be not less than eighty-five percent (85%) of the fair market value of the stock subject to the Option on the date the Option is granted. (c) Consideration. The purchase price of stock acquired pursuant to an Option shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the option is exercised, or (ii) at the discretion of the Board or the Committee, either at the time of the grant or exercise of the Option, (A) by delivery to the Company of other common stock of the Company, (B) according to a deferred payment or other arrangement (which may include, without limiting the generality of the foregoing, the use of other common stock of the Company) with the person to whom the Option is granted or to whom the Option is transferred pursuant to subsection 6(d), or (C) in any other form of legal consideration that may be acceptable to the Board. In the case of any deferred payment arrangement, interest shall be payable at least annually and shall be charged at the minimum rate of interest necessary to avoid the treatment as interest, under any applicable provisions of the Code, of any amounts other than amounts stated to be interest under the deferred payment arrangement. (d) Transferability. An Option shall not be transferable except by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of the person to whom the Option is granted only by such person. (e) Vesting. The total number of shares of stock subject to an Option may, but need not, be allotted in periodic installments (which may, but need not, be equal). The Option Agreement may provide that from time to time during each of such installment periods, the Option may become exercisable ("vest") with respect to some or all of the shares allotted to that period, and may be exercised with respect to some or all of the shares allotted to such period and/or any prior period as to which the Option became vested but was not fully exercised. During the remainder of the term of the Option (if its term extends beyond the end of the installment periods), the option may be exercised from time to time with respect to any shares then remaining subject to the Option. The provisions of this subsection 6(e) are subject to any Option provisions governing the minimum number of shares as to which an Option may be exercised. (f) Securities Law Compliance. The Company may require any Optionee, or any person to whom an Option is transferred under subsection 6(d), as a condition of exercising any such Option, (1) to give written assurances satisfactory to the Company as to the Optionee's knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters, and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Option; and (2) to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the Option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the Option has been registered under a then currently effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or (ii) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. (g) Termination of Employment or Relationship as a Director or Consultant. In the event an Optionee's continuous status as an Employee, Director or Consultant terminates (other than upon the Optionee's death or Disability), the Optionee may exercise his or her Option, but only within such period of time as is determined by the Board, and only to the extent that the Optionee was entitled to exercise it at the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). In the case of an Incentive Stock Option, the Board shall determine such period of time (in no event to exceed three (3) months from the date of termination) when the Option is granted. If, at the date of termination, the Optionee is not entitled to exercise his or her entire Option, the shares covered by the unexercisable portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified in the Option Agreement, the Option shall terminate, and the shares covered by such Option shall revert to the Plan. (h) Disability of Optionee. In the event an Optionee's continuous status as an Employee, Director or Consultant terminates as a result of the Optionee's Disability, the Optionee may exercise his or her Option, but only within twelve (12) months from the date of such termination (or such shorter period specified in the Option Agreement), and only to the extent that the Optionee was entitled to exercise it at the date of such termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). If, at the date of termination, the Optionee is not entitled to exercise his or her entire Option, the shares covered by the unexercisable portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the shares covered by such Option shall revert to the Plan. (i) Death of Optionee. In the event of the death of an Optionee, the Option may be exercised, at any time within twelve (12) months following the date of death (or such shorter period specified in the Option Agreement) (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement), by the Optionee's estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent the Optionee was entitled to exercise the Option at the date of death. If, at the time of death, the Optionee was not entitled to exercise his or her entire Option, the shares covered by the unexercisable portion of the Option shall revert to the Plan. If, after death, the Optionee's estate or a person who acquired the right to exercise the Option by bequest or inheritance does not exercise the Option within the time specified herein, the Option shall terminate, and the shares covered by such Option shall revert to the Plan. (j) Early Exercise. The Option may, but need not, include a provision whereby the Optionee may elect at any time while an Employee, Director or Consultant to exercise the Option as to any part or all of the shares subject to the Option prior to the full vesting of the Option. Any unvested shares so purchased may be subject to a repurchase right in favor of the Company or to any other restriction the Board determines to be appropriate. (k) Withholding. To the extent provided by the terms of an Option Agreement, the Optionee may satisfy any federal, state or local tax withholding obligation relating to the exercise of such Option by any of the following means or by a combination of such means: (1) tendering a cash payment; (2) authorizing the Company to withhold shares from the shares of the common stock otherwise issuable to the participant as a result of the exercise of the Option; or (3) delivering to the Company owned and unencumbered shares of the common stock of the Company. 7. TERMS OF PURCHASES OF STOCK. Each stock purchase agreement shall be in such form and shall contain such terms and conditions as the Board or the Committee shall deem appropriate. The terms and conditions of stock purchase agreements may change from time to time, and the terms and conditions of separate agreements need not be identical, but each stock purchase agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions as appropriate: (a) Purchase Price. The purchase price under each stock purchase agreement shall be such amount as the Board or Committee shall determine and designate in such stock purchase agreement; provided, however, that such purchase price shall not be less than (i) eighty-five percent (85%) of the fair market value of the stock subject to such stock purchase agreement if such person owns stock possessing ten percent (10%) or less of the total combined voting power of all classes of stock of the Company or of any of its Affiliates, or (ii) one hundred percent (100%) of the fair market value of the stock subject to such stock purchase agreement if such person owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any of its Affiliates. (b) Transferability. No rights under a stock purchase agreement shall be assignable by any participant under the Plan, either voluntarily or by operation of law, except where such assignment is required by law or expressly authorized by the terms of the applicable stock purchase agreement. (c) Consideration. The purchase price of stock acquired pursuant to a stock purchase agreement shall be paid either: (i) in cash at the time of purchase; (ii) at the discretion of the Board or the Committee, according to a deferred payment or other arrangement with the person to whom the stock is sold; or (iii) in any other form of legal consideration that may be acceptable to the Board or the Committee in their discretion. (d) Vesting. Shares of stock sold or awarded under the Plan may, but need not, be subject to a repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board or the Committee. (e) Termination of Employment or Relationship as a Director or Consultant. In the event a Participant's continuous status as an Employee, Director or Consultant terminates, the Company may repurchase or otherwise reacquire any or all of the shares of stock held by that person which have not vested as of the date of termination under the terms of the stock purchase agreement between the Company and such person. (f) Withholding. To the extent provided by the terms of a stock purchase agreement, the participant may satisfy any federal, state or local tax withholding obligation relating to the purchase of stock by any of the following means or by a combination of such means: (1) tendering a cash payment; (2) authorizing the Company to withhold shares from the shares of the common stock otherwise issuable to the participant as a result of the purchase of stock; or (3) delivering to the Company owned and unencumbered shares of the common stock of the Company. 8. CANCELLATION AND RE-GRANT OF OPTIONS. The Board or the Committee shall have the authority to effect, at any time and from time to time, with the consent of the affected holders of Options, (i) the repricing of any outstanding Options under the Plan and/or (ii) the cancellation of any outstanding Options under the Plan and the grant in substitution therefor of new Options under the Plan covering the same or different numbers of shares of stock, but having an exercise price per share not less than eighty-five percent (85%) of the fair market value (one hundred percent (100%) of the fair market value in the case of an Incentive Stock Option or, in the case of a 10% stockholder (as described in subparagraph 5(c)), not less than one hundred ten percent (110%) of the fair market value) per share of stock on the new grant date. 9. COVENANTS OF THE COMPANY. (a) During the terms of the Stock Awards, the Company shall keep available at all times the number of shares of stock required to satisfy such Stock Awards up to the number of shares of stock authorized under the Plan (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock under the Stock Awards; provided, however, that this undertaking shall not require the Company to register under the Securities Act either the Plan, any Stock Award or any stock issued or issuable pursuant to any such Stock Award. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary for the lawful issuance and sale of stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell stock under such Stock Awards unless and until such authority is obtained. 10. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to Stock Awards shall constitute general funds of the Company. 11. MISCELLANEOUS. (a) Neither an Optionee nor any person to whom an Option is transferred under subsection 6(d) shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such Option unless and until such person has satisfied all requirements for exercise of the Option pursuant to its terms. (b) Throughout the term of any Option, the Company shall deliver to the holder of such Option, not later than one hundred twenty (120) days after the close of each of the Company's fiscal years during the Option term, (i) a balance sheet and income statement for the preceding year; and (ii) any other information regarding the Company as comprises the annual report to the stockholders of the Company provided for in the bylaws of the Company. [amended December 8, 1992] (c) Nothing in the Plan or any instrument executed or Stock Award granted pursuant thereto shall confer upon any Employee, Director, Consultant, Optionee, or other holder of Stock Awards any right to continue in the employ of the Company or any Affiliate (or to continue acting as a Director or Consultant) or shall affect the right of the Company or any Affiliate to terminate the employment or relationship as a Director or Consultant of any Employee, Director, Consultant or Optionee with or without cause. (d) To the extent that the aggregate fair market value (determined at the time of grant) of stock with respect to which Incentive Stock Options granted after 1986 are exercisable for the first time by any Optionee during any calendar year under all plans of the Company and its Affiliates exceeds one hundred thousand dollars ($100,000), the Options or portions thereof which exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory Stock Options. 12. ADJUSTMENTS UPON CHANGES IN STOCK. (a) If any change is made in the stock subject to the Plan, or subject to any Stock Award (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), the Plan and outstanding Stock Awards will be appropriately adjusted in the class(es) and maximum number of shares subject to the Plan and the class(es) and number of shares and price per share of stock subject to outstanding Stock Awards. (b) In the event of: (1) a merger or consolidation in which the Company is not the surviving corporation; or (2) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, then, to the extent permitted by applicable law: (i) any surviving corporation shall assume any Stock Awards outstanding under the Plan or shall substitute similar Stock Awards for those outstanding under the Plan, or (ii) such Stock Awards shall continue in full force and effect. In the event any surviving corporation refuses to assume or continue such Stock Awards, or to substitute similar stock awards for those outstanding under the Plan, then such Stock Awards shall be terminated if not exercised prior to such event. In the event of a dissolution or liquidation of the Company, any Stock Awards outstanding under the Plan shall terminate if not exercised prior to such event. 13. AMENDMENT OF THE PLAN. (a) The Board at any time, and from time to time, may amend the Plan. However, except as provided in Section 13 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the shareholders of the Company within twelve (12) months before or after the adoption of the amendment, where the amendment will: (i) Increase the number of shares reserved for Stock Awards under the Plan; (ii) Modify the requirements as to eligibility for participation in the Plan to the extent such modification requires stockholder approval in order for the Plan to satisfy the requirements of Section 422 of the Code; or (iii) Modify the Plan in any other way if such modification requires stockholder approval in order for the Plan to satisfy the requirements of Section 422 of the Code or to comply with the requirements of Rule 16b-3, if applicable. (b) It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide Optionees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options granted under it into compliance therewith. (c) Rights and obligations under any Stock Award granted before amendment of the Plan shall not be altered or impaired by any amendment of the Plan unless (i) the Company requests the consent of the person to whom the Stock Award was granted and (ii) such person consents in writing. 14. TERMINATION OR SUSPENSION OF THE PLAN. (a) The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on August 4, 2002. No Stock Awards may be granted under the Plan while the Plan is suspended or after it is terminated. (b) Rights and obligations under any Stock Award granted while the Plan is in effect shall not be altered or impaired by suspension or termination of the Plan, except with the consent of the person to whom the Stock Award was granted. 15. EFFECTIVE DATE OF PLAN. The Plan shall become effective as determined by the Board, but no Stock Awards granted under the Plan shall be exercisable unless and until the Plan has been approved by the shareholders of the Company, and, if required, an appropriate permit has been issued by the Commissioner of Corporations of the State of California. EX-4.2 3 Exhibit 4.2 INCENTIVE STOCK OPTION ____________, Optionee: ILLUSTRA INFORMATION TECHNOLOGIES, INC. (the "Company"), pursuant to its 1992 Equity Incentive Plan (the "Plan") has this day granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's employees (including officers), directors and consultants and is intended to comply with the provisions of Rule 701 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). The details of your option are as follows: 1. The total number of shares of Common Stock subject to this option is _____________. Subject to the limitations contained herein, this option shall be exercisable with respect to each installment shown below on or after the date of vesting applicable to such installment, provided that you are employed with the Company on that vesting date, as follows: Date of Earliest Exercise Number of Shares (Vesting Date) (Installment) Last day of 12th month following shares (approx. 20% of total Commencement Date shares subject to option) End of 13th through 59th months shares (approx. 1/60 of total following Commencement Date shares subject to option) End of 60th month following shares (balance of shares Commencement Date subject to option) The Commencement Date for purposes of this Option is _____. The vesting schedule set forth above shall result in vesting at a rate of no less that 20% of the total number of shares per year over the five years from the date the option is granted, provided that no shares shall vest following termination of your employment with the Company. 2. (a) The exercise price of this option is $______ per share, being not less than the fair market value of the Common Stock on the date of grant of this option. (b) Payment of the exercise price per share is due in full in cash (including check) upon exercise of all or any part of each installment which has become exercisable by you. Notwithstanding the foregoing, this option may be exercised pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which results in the receipt of cash (or check) by the Company prior to the issuance of Common Stock. 3. (a) Subject to the provisions of this option you may elect at any time during your employment with the Company or an affiliate thereof, to exercise the option as to any part or all of the shares subject to this option at any time during the term hereof, including, without limitation, a time prior to the date of earliest exercise ("vesting") stated in paragraph 1 hereof; provided, however, that: (i) a partial exercise of this option shall be deemed to cover first vested shares and then the earliest vesting installment of unvested shares; (ii) any shares so purchased from installments which have not vested as of the date of exercise shall be subject to the purchase option in favor of the Company as described in the Early Exercise Stock Purchase Agreement attached hereto; and (iii) you shall enter into an Early Exercise Stock Purchase Agreement in the form attached hereto with a vesting schedule that will result in the same vesting as if no early exercise had occurred. (b) The election provided in this paragraph 3 to purchase shares upon the exercise of this option prior to the vesting dates shall cease upon termination of your employment with the Company or an affiliate thereof and may not be exercised after the date thereof. 4. The minimum number of shares with respect to which this option may be exercised at any one time is one hundred (100), except (a) as to an installment subject to exercise, as set forth in paragraph 1, which amounts to fewer than one hundred (100) shares, in which case, as to the exercise of that installment, the number of shares in such installment shall be the minimum number of shares, and (b) with respect to the final exercise of this option this minimum shall not apply. In no event may this option be exercised for any number of shares which would require the issuance of anything other than whole shares. 5. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. 6. The term of this option commences on the date hereof and, unless sooner terminated as set forth below or in the Plan, terminates on ________________ (the date ten (10) years from the date this option is granted). In no event may this option be exercised on or after the date on which it terminates. This option shall terminate prior to the expiration of its term as follows: three (3) months after the termination of your employment with the Company or an affiliate of the Company (as defined in the Plan) for any reason or for no reason unless: (a) such termination of employment is due to your permanent and total disability (within the meaning of Section 422(c)(6) of the Code), in which event the option shall terminate on the earlier of the termination date set forth above or twelve (12) months following such termination of employment; or (b) such termination of employment is due to your death, in which event the option shall terminate on the earlier of the termination date set forth above or twelve (12) months after your death; or (c) during any part of such three (3) month period the option is not exercisable solely because of the condition set forth in paragraph 5 above, in which event the option shall not terminate until the earlier of the termination date set forth above or until it shall have been exercisable for an aggregate period of three (3) months after the termination of employment; or (d) exercise of the option within three (3) months after termination of your employment with the Company or with an affiliate would result in liability under section 16(b) of the Securities Exchange Act of 1934, in which case the option will terminate on the earlier of (i) the termination date set forth above, (ii) the tenth (10th) day after the last date upon which exercise would result in such liability or (iii) six (6) months and ten (10) days after the termination of your employment with the Company or an affiliate. However, this option may be exercised following termination of employment only as to that number of shares as to which it was exercisable on the date of termination of employment under the provisions of paragraph 1 of this option. 7. (a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require pursuant to subparagraph 6(f) of the Plan. (b) By exercising this option you agree that: (i) the Company may require you to enter an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (A) the exercise of this option; (B) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (C) the disposition of shares acquired upon such exercise; (ii) you will notify the Company in writing within fifteen (15) days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of this option that occurs within two (2) years after the date of this option grant or within one (1) year after such shares of Common Stock are transferred upon exercise of this option; (iii) the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date (the "Effective Date") of the registration statement of the Company filed under the Act as may be requested by the Company or the representative of the underwriters; provided, however, that such restriction shall apply only if, on the Effective Date, you are an officer, director, or owner of more than one percent (1%) of the outstanding securities of the Company. For purposes of this restriction you will be deemed to own securities which (1) are owned directly or indirectly by you, including securities held for your benefit by nominees, custodians, brokers or pledgees; (2) may be acquired by you within sixty (60) days of the Effective Date; (3) are owned directly or indirectly, by or for your brothers or sisters (whether by whole or half blood), spouse, ancestors and lineal descendants; or (4) are owned, directly or indirectly, by or for a corporation, partnership, estate or trust of which you are a shareholder, partner or beneficiary, but only to the extent of your proportionate interest therein as a shareholder, partner or beneficiary thereof. You further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. (iv) all shares of Common Stock issued on exercise of this option shall be subject to a purchase option in favor of the Company as set forth in this subparagraph 7(b)(iv) (the "Market Value Option"). In the event your employment with the Company terminates, for any reason or no reason, with or without cause, then the Company shall have the right to purchase all or any part of such stock by exercising the Market Value Option. The Market Value Option may be exercised by written notice to you and payment of the purchase price in cash at any time within 90 days after the date your employment terminates. The exercise price of the Market Value Option shall be the greater of (1) the price at which the shares were initially purchased from the Company; or (2) the fair market value of the stock at the time of such termination as determined by the Board of Directors of the Company taking into account the book value, present earnings, overall financial condition and future prospects of the Company. If the stockholder holding shares subject to the Market Value Option objects to the value so determined by the Board, then the exercise price of the Market Value Option shall be the fair market value of the stock being purchased, on the date of termination, as determined by an independent appraiser to be designated by the Board of Directors, subject to the approval of the stockholder, which approval shall not be unreasonably withheld. The cost of such appraisal shall be paid 50% each by the Company and by such stockholder. The Market Value Option shall terminate upon the earlier of (1) _______________ or (2) the date securities of the Corporation are first offered to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act, or any successor to the Act; or (3) the first date on which the shares of the same class and series as the shares subject to such Option are traded on a public market. If any shares subject to the Market Value Option are transferred, such shares shall remain subject to the Market Value Option in the hands of the transferee, and the certificates evidencing such shares may bear a legend referring to the Market Value Option. Any and all new, substituted or additional securities or other property to which you may be entitled as a result of (A) a stock dividend or liquidating dividend of cash and/or property, stock split, or other change in the character or amount of any of the outstanding securities of the Company, or (B) a consolidation, merger or sale of all, or substantially all, of the assets of the Company by reason of your ownership of the shares issued on exercise of this option shall be immediately subject to the Market Value Option. Upon the occurrence of any event specified in clause (B) above, the Market Value Option may be assigned to any successor of the Company, and shall apply if you do not become or shall cease for any reason to be employed by such successor or its affiliates. In that case, references herein to the "Company" shall be deemed to refer to such successor. (v) all shares of Common Stock issued on exercise of this option shall be subject to any right of first refusal set forth in any applicable provisions of the Company's Bylaws and; (vi) you will at the time of exercise execute an agreement with the Company implementing the provisions of this Section 7. 8. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. 9. This option is not an employment contract and nothing in this option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company, or of the Company to continue your employment with the Company. 10. Any notices provided for in this option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 11. This option is subject to all the provisions of the Plan, a copy of which is attached hereto and its provisions are hereby made a part of this option, including without limitation the provisions of paragraph 6 of the Plan relating to option provisions, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this option and those of the Plan, the provisions of the Plan shall control. Dated the _____ day of ____________, ______. Very truly yours, ILLUSTRA INFORMATION TECHNOLOGIES, INC. By ________________________________ Duly authorized on behalf of the Board of Directors The undersigned: (a) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option and the Plan; and (b) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of the following agreements only: NONE _________________ (Initial) OTHER _________________________________ _________________________________ _________________________________ _____________________________________ __________________, Optionee Address: ________________________________ ________________________________ ATTACHMENTS: 1992 Equity Incentive Plan Form of Exercise Early Exercise Stock Purchase Agreement EX-4.3 4 Exhibit 4.3 NONSTATUTORY STOCK OPTION _______________, Optionee: ILLUSTRA INFORMATION TECHNOLOGIES, INC. (the "Company"), pursuant to its 1992 Equity Incentive Plan (the "Plan") has this day granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is not intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's employees (including officers), directors and consultants and is intended to comply with the provisions of Rule 701 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). The details of your option are as follows: 1. The total number of shares of Common Stock subject to this option is ____________ (______). Subject to the limitations contained herein, this option shall be exercisable with respect to each installment shown below on or after the date of vesting applicable to such installment, provided that you are a Consultant to the Company on that vesting date, as follows: Date of Earliest Exercise Number of Shares (Vesting Date) (Installment) As of the Commencement _______ shares (100% of total Date shares subject to option) The Commencement Date for purposes of this Option is _______. 2. (a) The exercise price of this option is $_____ per share, being not less than the fair market value of the Common Stock on the date of grant of this option. (b) Payment of the exercise price per share is due in full in cash (including check) upon exercise of all or any part of each installment which has become exercisable by you. Notwithstanding the foregoing, this option may be exercised pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which results in the receipt of cash (or check) by the Company prior to the issuance of Common Stock. 3. (a) Subject to the provisions of this option you may elect at any time during your service as a Consultant to the Company or an affiliate thereof, to exercise the option as to any part or all of the shares subject to this option at any time during the term hereof, including, without limitation, a time prior to the date of earliest exercise ("vesting") stated in paragraph 1 hereof; provided, however, that: (i) a partial exercise of this option shall be deemed to cover first vested shares and then the earliest vesting installment of unvested shares; (ii) any shares so purchased from installments which have not vested as of the date of exercise shall be subject to the purchase option in favor of the Company as described in the Early Exercise Stock Purchase Agreement attached hereto; and (iii) you shall enter into an Early Exercise Stock Purchase Agreement in the form attached hereto with a vesting schedule that will result in the same vesting as if no early exercise had occurred. (b) The election provided in this paragraph 3 to purchase shares upon the exercise of this option prior to the vesting dates shall cease upon termination of your service with the Company or an affiliate thereof and may not be exercised after the date thereof. 4. The minimum number of shares with respect to which this option may be exercised at any one time is one hundred (100), except with respect to the final exercise of this option this minimum shall not apply. In no event may this option be exercised for any number of shares which would require the issuance of anything other than whole shares. 5. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. 6. The term of this option commences on the date hereof and, unless sooner terminated as set forth below or in the Plan, terminates on November 21, 2005 (the date ten (10) years from the date this option is granted). In no event may this option be exercised on or after the date on which it terminates. This option shall terminate prior to the expiration of its term as follows: three (3) months after the termination of your service with the Company or an affiliate of the Company (as defined in the Plan) for any reason or for no reason unless: (a) such termination of service is due to your permanent and total disability (within the meaning of Section 422(c)(6) of the Code), in which event the option shall terminate on the earlier of the termination date set forth above or twelve (12) months following such termination of service; or (b) such termination of service is due to your death, in which event the option shall terminate on the earlier of the termination date set forth above or twelve (12) months after your death; or (c) during any part of such three (3) month period the option is not exercisable solely because of the condition set forth in paragraph 5 above, in which event the option shall not terminate until the earlier of the termination date set forth above or until it shall have been exercisable for an aggregate period of three (3) months after the termination of service or (d) exercise of the option within three (3) months after termination of your service with the Company or with an affiliate would result in liability under section 16(b) of the Securities Exchange Act of 1934, in which case the option will terminate on the earlier of (i) the termination date set forth above, (ii) the tenth (10th) day after the last date upon which exercise would result in such liability or (iii) six (6) months and ten (10) days after the termination of your service with the Company or an affiliate. However, this option may be exercised following termination of service only as to that number of shares as to which it was exercisable on the date of termination of service under the provisions of paragraph 1 of this option. 7. (a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require pursuant to subparagraph 6(f) of the Plan. (b) By exercising this option you agree that: (i) the Company may require you to enter an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (A) the exercise of this option; (B) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (C) the disposition of shares acquired upon such exercise; (ii) you will notify the Company in writing within fifteen (15) days after the date of any disposition of any of the shares of the Common Stock issued upon exercise of this option that occurs within two (2) years after the date of this option grant or within one (1) year after such shares of Common Stock are transferred upon exercise of this option; (iii) the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date (the "Effective Date") of the registration statement of the Company filed under the Act as may be requested by the Company or the representative of the underwriters; provided, however, that such restriction shall apply only if, on the Effective Date, you are an officer, director, or owner of more than one percent (1%) of the outstanding securities of the Company. For purposes of this restriction you will be deemed to own securities which (1) are owned directly or indirectly by you, including securities held for your benefit by nominees, custodians, brokers or pledgees; (2) may be acquired by you within sixty (60) days of the Effective Date; (3) are owned directly or indirectly, by or for your brothers or sisters (whether by whole or half blood), spouse, ancestors and lineal descendants; or (4) are owned, directly or indirectly, by or for a corporation, partnership, estate or trust of which you are a shareholder, partner or beneficiary, but only to the extent of your proportionate interest therein as a shareholder, partner or beneficiary thereof. You further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. (iv) all shares of Common Stock issued on exercise of this option shall be subject to a purchase option in favor of the Company as set forth in this subparagraph 7(b)(iv) (the "Market Value Option"). In the event your service with the Company terminates, for any reason or no reason, with or without cause, then the Company shall have the right to purchase all or any part of such stock by exercising the Market Value Option. The Market Value Option may be exercised by written notice to you and payment of the purchase price in cash at any time within 90 days after the date your service terminates. The exercise price of the Market Value Option shall be the greater of (1) the price at which the shares were initially purchased from the Company; or (2) the fair market value of the stock at the time of such termination as determined by the Board of Directors of the Company taking into account the book value, present earnings, overall financial condition and future prospects of the Company. If the stockholder holding shares subject to the Market Value Option objects to the value so determined by the Board, then the exercise price of the Market Value Option shall be the fair market value of the stock being purchased, on the date of termination, as determined by an independent appraiser to be designated by the Board of Directors, subject to the approval of the stockholder, which approval shall not be unreasonably withheld. The cost of such appraisal shall be paid 50% each by the Company and by such stockholder. The Market Value Option shall terminate upon the earlier of (1) _____________; (2) the date securities of the Corporation are first offered to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act, or any successor to the Act; or (3) the first date on which the shares of the same class and series as the shares subject to such Option are traded on a public market. If any shares subject to the Market Value Option are transferred, such shares shall remain subject to the Market Value Option in the hands of the transferee, and the certificates evidencing such shares may bear a legend referring to the Market Value Option. Any and all new, substituted or additional securities or other property to which you may be entitled as a result of (A) a stock dividend or liquidating dividend of cash and/or property, stock split, or other change in the character or amount of any of the outstanding securities of the Company, or (B) a consolidation, merger or sale of all, or substantially all, of the assets of the Company by reason of your ownership of the shares issued on exercise of this option shall be immediately subject to the Market Value Option. Upon the occurrence of any event specified in clause (B) above, the Market Value Option may be assigned to any successor of the Company, and shall apply if you do not become or shall cease for any reason to be a Consultant to such successor or its affiliates. In that case, references herein to the "Company" shall be deemed to refer to such successor. (v) all shares of Common Stock issued on exercise of this option shall be subject to any right of first refusal set forth in any applicable provisions of the Company's Bylaws and; (vi) you will at the time of exercise execute an agreement with the Company implementing the provisions of this Section. 8. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. 9. This option is not an employment contract and nothing in this option shall be deemed to create in any way whatsoever any obligation on your part to continue as a Consultant to the Company, or of the Company to continue your service with the Company. 10. Any notices provided for in this option or the Plan shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 11. This option is subject to all the provisions of the Plan, a copy of which is attached hereto and its provisions are hereby made a part of this option, including without limitation the provisions of paragraph 7 of the Plan relating to option provisions, and is further subject to all interpretations, amendments, rules and regulations which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the provisions of this option and those of the Plan, the provisions of the Plan shall control. Dated _______________. Very truly yours, ILLUSTRA INFORMATION TECHNOLOGIES, INC. By Duly authorized on behalf of the Board of Directors The undersigned: (a) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option and the Plan; and (b) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of the following agreements only: NONE _________________ (Initial) OTHER ____________________________ ____________________________ ____________________________ ______________________________ Address:______________________________ ______________________________ ATTACHMENTS: 1992 Equity Incentive Plan Form of Exercise EX-4.4 5 Exhibit 4.4 EARLY EXERCISE STOCK PURCHASE AGREEMENT THIS AGREEMENT is made by and between ILLUSTRA INFORMATION TECHNOLOGIES, INC., a Delaware corporation (the "Corporation"), and ____________________________ ("Purchaser"). WITNESSETH: WHEREAS, Purchaser holds a _________ stock option to purchase shares of common stock of the Corporation which Purchaser desires to exercise; and WHEREAS, Purchaser wishes to take advantage of the early exercise provision of his option and therefore to enter into this Agreement; NOW, THEREFORE, IT IS AGREED between the parties as follows: 1. Purchaser hereby agrees to purchase from the Corporation, and the Corporation hereby agrees to sell to Purchaser, an aggregate of _______ shares of the common stock (the "Stock") of the Corporation, for an exercise price of $_______ per share (total exercise price: ______________ ($______)), payable in cash. 2. (a) All of the shares of the Corporation's Common Stock being purchased by Purchaser pursuant to this Agreement (hereinafter sometimes collectively referred to as the "Stock") shall be subject to the option set forth in this paragraph 2 ("Purchase Option"). In the event Purchaser shall cease to be employed by the Corporation (including a parent or subsidiary of the Corporation) at any time prior to the fifth anniversary of ______________ (the "Commencement Date") for any reason, or no reason, with or without cause, the Corporation shall have the right, at any time within 90 days after the date Purchaser ceases to be so employed, to exercise the Purchase Option, which consists of the right to purchase from Purchaser or his personal representative, as the case may be, at the purchase price per share set forth in paragraph 1 above ("the Option Price"), up to but not exceeding the number of shares of Stock which have not vested under the provisions of subparagraph (b) below, upon the terms hereinafter set forth. (b) The Corporation may exercise the Purchase Option as to the maximum portion of the Stock specified in the following table: Portion of the Stock Subject to If Employment Terminates Purchase Option From the Commencement Date 100% to the last day of the 12th month following the Commencement Date First day of the 13th month 100% minus 1/60 of the following the Commencement Date Stock purchased for each month to the last day of 60th month employed (subject to paragraph (c) below) After 60 months None (c) Notwithstanding the provisions of paragraph (b), in the event that Purchaser shall cease to be employed by the Corporation for any reason (including Purchaser's death), or no reason with or without cause, the Purchase Option may be exercised. (d) In addition, and without limiting the foregoing Purchase Option, if at any time during the term of the Purchase Option, there occurs: (a) a dissolution or liquidation of the Corporation; (b) a merger or consolidation involving the Corporation in which the Corporation is not the surviving corporation; (c) a reverse merger in which the corporation is the surviving corporation but the shares of the Corporation's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of other securities, cash or otherwise; or (d) any other capital reorganization in which more than fifty percent (50%) of the shares of the Corporation entitled to vote are exchanged, then: (i) if there will be no successor to the Corporation, the Corporation shall have the right to exercise its Purchase Option as to all or any portion of the Stock then subject to the Purchase Option set forth above to the same extent as if Purchaser's employment by the Corporation had ceased on the date preceding the date of consummation of said event or transaction, or (ii) the Purchase Option may be assigned to any successor of the Corporation, and the Purchase Option shall apply if Purchaser shall cease for any reason to be an employee of such successor on the same basis as set forth above. In that case, references herein to the "Corporation" shall be deemed to refer to such successor. (e) Nothing in this Agreement shall affect in any manner whatsoever the right or power of the Corporation, or a parent or subsidiary of the Corporation, to terminate Purchaser's employment, for any reason, with or without cause. 3. The Purchase Option shall be exercised by written notice signed by an officer of the Corporation and delivered or mailed as provided in paragraph 14. The Option Price shall be payable, at the option of the Corporation, in cancellation of all or a portion of any outstanding indebtedness of Purchaser to the Corporation or in cash (by check) or both. 4. The Corporation may assign its rights under paragraphs 2 and 3 hereof. 5. If, from time to time during the term of the Purchase Option: (i) there is any stock dividend or liquidating dividend of cash and/or property, stock split, or other change in the character or amount of any of the outstanding securities of the Corporation; or (ii) there is any consolidation, merger or sale of all, or substantially all, of the assets of the Corporation; then, in such event, any and all new, substituted or additional securities or other property to which Purchaser is entitled by reason of his ownership of the Stock shall be immediately subject to the Purchase Option and be included in the word "Stock" for all purposes of the Purchase Option with the same force and effect as the shares of Stock subject to the Purchase Option under the terms of paragraph 2. While the total Option Price shall remain the same after each such event, the Option Price per share of Stock upon exercise of the Purchase Option shall be appropriately adjusted. Upon the occurrence of any event specified in subsection (ii) above, the Purchase Option may be assigned to any successor of the Corporation, and the Purchase Option shall apply if Purchaser does not become or shall cease for any reason to be employed by such successor or its affiliates. In that case, references herein to the "Corporation" shall be deemed to refer to such successor. 6. Purchaser acknowledges that Purchaser is aware that the Stock to be issued to Purchaser by the Corporation pursuant to this Agreement has not been registered under the Act, and that the Stock is deemed to constitute "restricted securities" under Rule 701 and Rule 144 promulgated under the Act. In this connection, Purchaser warrants and represents to the Corporation that Purchaser is purchasing the Stock for Purchaser's own account and Purchaser has no present intention of distributing or selling said stock except as permitted under the Act and Section 260.141.11 of Title 10 of the California Corporations Code, attached hereto as Exhibit C. Purchaser further acknowledges that the exemption from registration under Rule 144 will not be available for at least three years from the date of sale of the Stock unless at least two years from the date of sale (i) a public trading market then exists for the Common Stock of the Corporation, (ii) adequate information concerning the Corporation is then available to the public, and (iii) other terms and conditions of Rule 144 are complied with; and that any sale of the Stock may be made only in limited amounts in accordance with such terms and conditions and that exemption from registration under Rule 701 will not be available until ninety days after the Corporation becomes subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 and that after such date the Stock may be resold by persons other than affiliates in reliance on Rule 144 without compliance with paragraphs (c),(d),(e) and (h) thereof, and by affiliates without compliance with paragraph (d) thereof. 7. All certificates representing any shares of Stock subject to the provisions of this Agreement shall have endorsed thereon the following legends: (a) The shares represented by this certificate are subject to an option set forth in an agreement between the Corporation and the registered holder, or the predecessor in interest, a copy of which is on file at the principal office of this corporation. Any transfer or attempted transfer of any shares subject to such option is void without the prior express written consent of the issuer of these shares. (b) The securities represented by this certificate have not been registered under the Securities Act of 1933 (the "Act"). They may not be sold or offered for sale or otherwise distributed unless the securities are registered under the Act or an exemption therefrom is available. (c) Any legend required to be placed thereon by the Corporation's Bylaws. (d) Any legend required to be placed thereon by appropriate Blue Sky officials. 8. As security for his faithful performance of the terms of this Agreement and to insure that the Stock will be available for delivery upon exercise of the Purchase Option as herein provided, Purchaser agrees to deliver to and deposit with the Secretary of the Corporation ("Escrow Agent"), as escrow agent in this transaction, two Stock Assignments duly endorsed (with date and number of shares blank) substantially in the form of Exhibit A attached hereto, together with the certificate or certificates evidencing the Stock; said documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the Joint Escrow Instructions of the Corporation and Purchaser substantially in the form of Exhibit B attached hereto and incorporated by this reference, which instructions shall also be delivered to the Escrow Agent at the closing hereunder. 9. Purchaser shall not sell or transfer any shares of the Stock then subject to the Purchase Option. Without in any way limiting the foregoing, Purchaser further agrees that he shall in no event make any disposition of all or any portion of the Stock which he is purchasing unless and until: (i) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with said registration statement; or (ii) (1) He shall have notified the Corporation of the proposed disposition and shall have furnished the Corporation with a detailed statement of the circumstances surrounding the proposed disposition, (2) he shall have furnished the Corporation with an opinion of his own counsel to the effect that such disposition will not require registration of such shares under the Act, and (3) such opinion of his counsel shall have been concurred in by counsel for the Corporation, such concurrence not to be unreasonably withheld, and the Corporation shall have advised him of such concurrence. 10. The Corporation shall not be required (i) to transfer on its books any shares of Stock of the Corporation which shall have been sold or transferred in violation of any of the provisions set forth in this Agreement or (ii) to treat as owner of such shares or to accord the right to vote as such owner or to pay dividends to any transferee to whom such shares shall have been transferred in violation of this Agreement. 11. Subject to the provisions of paragraph 8 above, Purchaser shall, during the term of this Agreement, exercise all rights and privileges of a shareholder of the Corporation with respect to the Stock deposited in said escrow. 12. Purchaser hereby agrees that for a period of not less than 90 days and up to a maximum of 180 days following the effective date of the first registration statement of the Corporation covering Common Stock (or other securities) to be sold on its behalf in an underwritten public offering, he shall not, to the extent requested by the Corporation and any underwriter, sell or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any Common Stock of the Corporation held by him at any time during such period except Common Stock included in such registration; provided, however, that all officers and directors of the Corporation who hold securities of the Corporation or options to acquire securities of the Corporation enter into similar agreements. In order to enforce the foregoing covenant, the Corporation may impose stop-transfer instructions with respect to the Common Stock held by Purchaser (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. 13. Purchaser acknowledges receipt of a copy of Section 260.141.11 of Title 10 of the California Administrative Code, attached hereto as Exhibit C. 14. The parties agree to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. 15. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or delivery by express courier, or four days after deposit in the United States Post Office, by registered or certified mail with postage and fees prepaid, addressed to the other party hereto at its address hereinafter shown below its signature or at such other address as such party may designate by ten days' advance written notice to the other party hereto. 16. This Agreement shall be governed by the laws of the State of California and interpreted and determined in accordance with the laws of the State of California. 17. This Agreement shall inure to the benefit of the successors and assigns of the Corporation and, subject to the restrictions on transfer herein set forth, shall be binding upon Purchaser, his heirs, executors, administrators, successors and assigns. 18. This Agreement, together with the Exhibits hereto, constitutes the entire, final and exclusive statement of the agreement of the parties with respect to the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PURCHASER ILLUSTRA INFORMATION TECHNOLOGIES, INC. _________________________ By___________________________________ Address: Address: _________________________ 1111 Broadway _________________________ Suite 2000 _________________________ Oakland, CA 94607 ATTACHMENTS: Exhibit A Assignment Separate from Certificate Exhibit B Joint Escrow Instructions EX-4.5 6 Exhibit 4.5 NONSTATUTORY STOCK OPTION ____________, Optionee: ILLUSTRA INFORMATION TECHNOLOGIES, INC. (the "Company") has this day granted to you, the optionee named above, an option to purchase shares of the common stock of the Company ("Common Stock"). This option is not intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). The grant hereunder is in connection with and in furtherance of the Company's compensatory benefit plan for participation of the Company's employees (including officers), directors and consultants and is intended to comply with the provisions of Rule 701 promulgated by the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). The details of your option are as follows: 1. The total number of shares of Common Stock subject to this option is ________ (_______). Subject to the limitations contained herein, this option shall be exercisable with respect to each installment shown below on or after the date of vesting applicable to such installment, provided that you are employed by the Company on that vesting date, as follows: Date of Earliest Exercise Number of Shares (Vesting Date) (Installment) Last day of the 12th month following ______ shares (approx. 20% of total Commencement Date shares subject to option) End of 13th through 59th months ______ shares (approx. 1/60 of total following Commencement Date shares subject to option) End of 60th month following ______ shares (balance of shares Commencement Date subject to option) The Commencement Date for purposes of this option is _______. 2. (a) The exercise price of this option is $_____ per share, being not less than the fair market value of the Common Stock on the date of grant of this option. (b) Payment of the exercise price per share is due in full in cash (including check) upon exercise of all or any part of each installment which has become exercisable by you. Notwithstanding the foregoing, this option may be exercised pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which results in the receipt of cash (or check) by the Company prior to the issuance of Common Stock. 3. (a) Subject to the provisions of this option you may elect at any time during your employment with the Company or an affiliate thereof, to exercise the option as to any part or all of the shares subject to this option at any time during the term hereof, including, without limitation, a time prior to the date of earliest exercise ("vesting") stated in paragraph 1 hereof; provided, however, that: (i) a partial exercise of this option shall be deemed to cover first vested shares and then the earliest vesting installment of unvested shares; (ii) any shares so purchased from installments which have not vested as of the date of exercise shall be subject to the purchase option in favor of the Company as described in the Early Exercise Stock Purchase Agreement attached hereto; and (iii) you shall enter into an Early Exercise Stock Purchase Agreement in the form attached hereto with a vesting schedule that will result in the same vesting as if no early exercise had occurred. (b) The election provided in this paragraph 3 to purchase shares upon the exercise of this option prior to the vesting dates shall cease upon termination of your employment with the Company or an affiliate thereof and may not be exercised after the date thereof. 4. The minimum number of shares with respect to which this option may be exercised at any one time is one hundred (100), except (a) as to an installment subject to exercise, as set forth in paragraph 1, which amounts to fewer than one hundred (100) shares, in which case, as to the exercise of that installment, the number of shares in such installment shall be the minimum number of shares, and (b) with respect to the final exercise of this option this minimum shall not apply. In no event may this option be exercised for any number of shares which would require the issuance of anything other than whole shares. 5. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Act or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. The Company may require Optionee (or other person eligible to exercise this option pursuant to the terms herein), as a condition of exercising any such option, (i) to give written assurances satisfactory to the Company as to the Optionee's knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters, and that he is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the Option; and (ii) to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (A) the issuance of the shares upon the exercise of the option has been registered under a then currently effective registration statement under the Act, or (B) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. 6. The term of this option commences on the date hereof and, unless sooner terminated as set forth below, terminates on __________. In no event may this option be exercised on or after the date on which it terminates. This option shall terminate prior to the expiration of its term as follows: (a) Termination of Relationship as an Employee. In the event Optionee's continuous status as an Employee terminates (other than upon the Optionee's death or disability), the Optionee may exercise his option within three (3) months from such date of termination, but only to the extent that the Optionee was entitled to exercise it at the date of termination. If, after termination, the Optionee does not exercise his option within the time specified herein, the option shall terminate. (b) Disability of Optionee. In the event Optionee's continuous status as an Employee terminates as a result of Optionee's Disability, the Optionee may exercise his option, but only within twelve (12) months from the date of such termination, and only to the extent that the Optionee was entitled to exercise it at the date of such termination. If, after termination, the Optionee does not exercise his option within the time specified herein, the option shall terminate. (c) Death of Optionee. In the event of the death of Optionee, the option may be exercised, at any time within twelve (12) months following the date of death (but in no event later than the expiration of the term of such option), by the Optionee's estate or by a person who acquired the right to exercise the option by bequest or inheritance, but only to the extent the Optionee was entitled to exercise the option at the date of death. If, after death, the Optionee's estate or a person who acquired the right to exercise the option by bequest or inheritance does not exercise the option within the time specified herein, the option shall terminate. (d) Definitions. (i) "Affiliate" means any parent corporation or subsidiary corporation, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f) respectively, of the Internal Revenue Code of 1986, as amended. (ii) "Director" means a member of the Board of Directors of the Company. (iii) "Employee" means any person, including Officers and Directors, employed by the Company or any Affiliate of the Company. Neither service as a Director nor payment of a director's fee by the Company shall be sufficient to constitute "employment" by the Company. (iv) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (v) "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder. 7. (a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then reasonably require. (b) By exercising this option you agree that: (i) the Company may require you to enter an arrangement providing for the payment by you to the Company of any tax withholding obligation of the Company arising by reason of (A) the exercise of this option; (B) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (C) the disposition of shares acquired upon such exercise; (ii) the Company (or a representative of the underwriters) may, in connection with the first underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer or dispose of any shares of Common Stock or other securities of the Company during such period (not to exceed one hundred eighty (180) days) following the effective date (the "Effective Date") of the registration statement of the Company filed under the Act as may be requested by the Company or the representative of the underwriters; provided, however, that such restriction shall apply only if, on the Effective Date, you are an officer, director, or owner of more than one percent (1%) of the outstanding securities of the Company. For purposes of this restriction you will be deemed to own securities which (1) are owned directly or indirectly by you, including securities held for your benefit by nominees, custodians, brokers or pledgees; (2) may be acquired by you within sixty (60) days of the Effective Date; (3) are owned directly or indirectly, by or for your brothers or sisters (whether by whole or half blood), spouse, ancestors and lineal descendants; or (4) are owned, directly or indirectly, by or for a corporation, partnership, estate or trust of which you are a shareholder, partner or beneficiary, but only to the extent of your proportionate interest therein as a shareholder, partner or beneficiary thereof. You further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. (iii) all shares of Common Stock issued on exercise of this option shall be subject to a purchase option in favor of the Company as set forth in this subparagraph 7(b)(iv) (the "Market Value Option"). In the event your employment with the Company terminates, for any reason or no reason, with or without cause, then the Company shall have the right to purchase all or any part of such stock by exercising the Market Value Option. The Market Value Option may be exercised by written notice to you and payment of the purchase price in cash at any time within 90 days after your employment terminates. The exercise price of the Market Value Option shall be the greater of (1) the price at which the shares were initially purchased from the Company; or (2) the fair market value of the stock at the time of such termination as determined by the Board of Directors of the Company taking into account the book value, present earnings, overall financial condition and future prospects of the Company. If the stockholder holding shares subject to the Market Value Option objects to the value so determined by the Board, then the exercise price of the Market Value Option shall be the fair market value of the stock being purchased, on the date of termination, as determined by an independent appraiser to be designated by the Board of Directors, subject to the approval of the stockholder, which approval shall not be unreasonably withheld. The cost of such appraisal shall be paid 50% each by the Company and by such stockholder. The Market Value Option shall terminate upon the earlier of (1) ___________; (2) the date securities of the Corporation are first offered to the public pursuant to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange Commission under the Act, or any successor to the Act; or (3) the first date on which the shares of the same class and series as the shares subject to such Option are traded on a public market. If any shares subject to the Market Value Option are transferred, such shares shall remain subject to the Market Value Option in the hands of the transferee, and the certificates evidencing such shares may bear a legend referring to the Market Value Option. Any and all new, substituted or additional securities or other property to which you may be entitled as a result of (A) a stock dividend or liquidating dividend of cash and/or property, stock split, or other change in the character or amount of any of the outstanding securities of the Company, or (B) a consolidation, merger or sale of all, or substantially all, of the assets of the Company by reason of your ownership of the shares issued on exercise of this option shall be immediately subject to the Market Value Option. Upon the occurrence of any event specified in clause (B) above, the Market Value Option may be assigned to any successor of the Company, and shall apply if you do not become or shall cease for any reason to be employed by such successor or its affiliates. In that case, references herein to the "Company" shall be deemed to refer to such successor. (iv) all shares of Common Stock issued on exercise of this option shall be subject to any right of first refusal set forth in any applicable provisions of the Company's Bylaws and; (v) you will at the time of exercise execute an agreement with the Company implementing the provisions of this Section 7. 8. During the term of this Option, the Company shall keep available at all times the number of shares of stock required to satisfy the exercise of such option. 9. Proceeds from the sale of stock pursuant to the exercise of this Option shall constitute general funds of the Company. 10. Optionee shall not be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to this option unless and until such person has satisfied all requirements for exercise of this option pursuant to its terms. Throughout the term of this option, the Company shall deliver to Optionee, not later than one hundred twenty (120) days after the close of each of the Company's fiscal years during the option term, (i) a balance sheet and income statement for the preceding year; and (ii) any other information regarding the Company as comprises the annual report to the stockholders of the Company provided for in the bylaws of the Company. 11. (a) If any change is made in the stock subject to this option (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), this option will be appropriately adjusted in the class(es), number of shares and price per share of stock subject to the option. (b) In the event of: (1) a merger or consolidation in which the Company is not the surviving corporation; or (2) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, then, to the extent permitted by applicable law: (i) any surviving corporation shall assume this option or shall substitute a similar option (if this option is still outstanding), or (ii) this option shall continue in full force and effect. In the event any surviving corporation refuses to assume or continue this option, or to substitute a similar option for this option (if still outstanding), then this option shall be terminated if not exercised prior to such event. In the event of a dissolution or liquidation of the Company, this option (if still outstanding) shall terminate if not exercised prior to such event. 12. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. 13. This option is not an employment contract and nothing in this option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company, or of the Company to continue your employment with the Company. 14. Any notices provided for in this option shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, addressed to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. Dated _____________. Very truly yours, ILLUSTRA INFORMATION TECHNOLOGIES, INC. By Duly authorized on behalf of the Board of Directors The undersigned: (a) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option; and (b) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionee and the Company and its affiliates regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of the following agreements only: NONE _______ (Initial) OTHER _______________________________________ _______________________________________ _______________________________________ ___________________________________ Address:___________________________ ___________________________ ATTACHMENTS: Form of Exercise Early Exercise Stock Purchase Agreement EX-5.1 7 Exhibit 5.1 March 1, 1996 Informix Corporation 4100 Bohannon Drive Menlo Park, California 94025 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about March 1, 1996 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, for an aggregate of 2,295,716 shares of your Common Stock under the Illustra Information Technologies, Inc. 1992 Equity Incentive Plan and Other Options. Such shares of Common Stock are referred to herein as the "Shares," and such plans are referred to herein as the "Plans." As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that, when issued and sold in the manner described in the Plans and pursuant to the agreements which accompany each grant under the Plans, the Shares will be legally and validly issued, fully- paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation EX-23.1 8 Exhibit 23.1 Consent of Independent Auditors We consent to incorporation by reference in the registration statement on Form S-8 of Informix Corporation of our report dated August 9, 1995, relating to the consolidated balance sheets of Illustra Information Technologies, Inc. and subsidiary as of June 30, 1995 and 1994, and the related consolidated statements of operations, stockholders' equity, and cash flows for the years then ended and for the period from July 31, 1992 (inception) to June 30, 1993, which report appears in the registration statement (No. 333-143) on Form S-4 of Informix Corporation. KPMG PEAT MARWICK LLP /s/ KPMG Peat Marwick LLP San Jose, California March 1, 1996 EX-23.2 9 Exhibit 23.2 Consent of Ernst & Young LLP, Independent Auditors We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Illustra Information Technologies, Inc. 1992 Equity Incentive Plan and Other Options of our report dated February 6, 1995, with respect to the consolidated financial statements and schedule of Informix Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1994, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP San Jose, California February 29, 1996 -----END PRIVACY-ENHANCED MESSAGE-----