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Exhibit 10.1
SYBASE, INC.
1988 STOCK OPTION PLAN
(As Amended March 13, 1998)
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees and Consultants
of the Company and to promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock Options or
Nonstatutory Stock Options, at the discretion of the Board and as reflected in
the terms of the Option Agreement.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Committee, if one has been appointed,
or the Board of Directors of the Company, if no Committee is appointed.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the Common Stock of the Company.
(d) "Common Stock" shall mean the Common Stock of the Company.
(e) "Company" shall mean Sybase, Inc., a Delaware corporation.
(f) "Consultant" shall mean any person who is engaged by the
Company or any parent or Subsidiary to render consulting services; the term
Consultant shall not include Directors.
(g) "Continuous Status as an Employee or Consultant" shall mean
the absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an Employee or Consultant shall not be
considered interrupted in the case of sick leave, military leave, or any other
leave of absence approved by the Board or its delegate; provided that, in the
case of an Incentive Stock Option only, such leave is for a period of not more
than 90 days or reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(h) "Director" shall mean a member of the Board of Directors of
the Company.
(i) "Employee" shall mean any person, including officers and
Directors, employed by the Company or any Parent or Subsidiary of the Company.
The
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payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(k) "Incentive Stock Option" shall mean an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(l) "Nonstatutory Stock Option" shall mean an Option not intended
to qualify as an Incentive Stock Option.
(m) "Officer" shall mean an officer of the Company within the
meaning of the rules and regulations promulgated under Section 16 of the
Exchange Act.
(n) "Option" shall mean a stock option granted pursuant to the
Plan.
(o) "Option Agreement" shall mean the written agreement evidencing
an Option. An Option Agreement may be an "Incentive Stock Option Agreement" or a
"Nonstatutory Stock Option Agreement."
(p) "Optioned Stock" shall mean the Common Stock subject to an
Option.
(q) "Optionee" shall mean an Employee or Consultant who receives
an Option.
(r) "Parent" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(s) "Plan" shall mean this 1988 Stock Option Plan.
(t) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 11 of the Plan.
(u) "Subsidiary" shall mean a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11
of the Plan, the maximum aggregate number of shares which may be optioned and
sold under the Plan is 17,930,480 shares of Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future grant under the Plan. Notwithstanding any other provision of the Plan,
shares issued under the Plan and
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later repurchased by the Company shall not become available for future grant or
sale under the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. If permitted by Rule
16b-3 promulgated under the Exchange Act ("Rule 16b-3"), the Plan may be
administered by different bodies with respect to Directors, Officers who are not
Directors, and Employees who are neither Directors nor Officers.
(ii) Administration with Respect to Directors and Officers.
With respect to Option grants made to Employees or consultants who are also
Officers or Directors, the Plan shall be administered by (A) the Board of
Directors, if the Board may administer the Plan in compliance with the rules
governing a plan intended to qualify as a discretionary grant or award plan
under Rule 16b-3, or (B) one or more committees designated by the Board of
Directors to administer the Plan, which committee(s) shall be constituted in
such a manner as to comply with the rules governing a plan intended to qualify
as a discretionary plan under Rule 16b-3. Once appointed, any such committee
shall continue to serve in its designated capacity until otherwise directed by
the Board of Directors. From time to time the Board of Directors may increase
the size of any such committee and appoint additional members, remove members
(with or without cause), substitute new members, fill vacancies (however
caused), or remove all members of any such committee and thereafter directly
administer the Plan, all to the extent permitted by the rules governing a plan
intended to qualify as a discretionary grant or award plan under Rule 16b-3.
(iii) Administration with Respect to Other Person. With
respect to Option grants made to Employees or consultants who are neither
Directors nor Officers, the Plan shall be administered by (A) the Board of
Directors or (B) a committee designated by the Board of Directors, which
committee shall be constituted to satisfy the legal requirements relating to the
administration of stock option plans under applicable state corporate and
securities laws and the Code ("Applicable Laws"). Once appointed, such committee
shall serve in its designated capacity until otherwise directed by the Board of
Directors. The Board of Directors may increase the size of any such committee
and appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), or remove all members
of such committee and thereafter directly administer the Plan, all to the extent
permitted by Applicable Laws.
(b) Powers of the Board. Subject to the provisions of the Plan,
the Board shall have the authority, in its discretion: (i) to grant Incentive
Stock Options or Nonstatutory Stock Options; (ii) to determine, upon review of
relevant information and in accordance with Section 8(b) of the Plan, the fair
market value of the Common Stock; (iii) to determine the exercise price per
share of Options to be granted which exercise price shall be determined in
accordance with Section 8(a) of the Plan; (iv) to determine the Employees and
Consultants to whom, and the time or times at which, Options shall be
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granted and the number of shares to be represented by each Option; (v) to
interpret the Plan; (vi) to prescribe, amend and rescind rules and regulations
relating to the Plan; (vii) to accelerate or defer (with the consent of the
Optionee) the exercise date of any Option, consistent with the provisions of
Section 5 of the Plan; (ix) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an option previously
granted by the Board; (x) to delegate to others such authority to administer the
Plan as may be permitted under Applicable Laws, and (xi) to make all other
determinations deemed necessary or advisable for the administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and any
other holders of any Options granted under the Plan.
5. Eligibility.
(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if he or she is
otherwise eligible, be granted an additional Option or Options.
(b) Each Option shall be designated in the Option Agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designations, to the extent that the aggregate fair market
value of all shares subject to an Optionee's Incentive Stock Options (granted by
the Company or any Parent or Subsidiary under all plans of the Company, any
Parent and any Subsidiary, including this Plan) which first become exercisable
during any calendar year exceeds $100,000, such excess Options shall be treated
as Nonstatutory Stock Options. For purposes of this Section 5(b), Incentive
Stock Options shall be taken into account in the order in which they were
granted, and the fair market value of the shares shall be determined as of the
time of grant of the Option.
(c) Section 5(b) of the Plan shall apply only to an Incentive
Stock Option evidenced by an Incentive Stock Option Agreement which sets forth
the intention of the company and the Optionee that such Option shall qualify as
an Incentive Stock Option. Section 5(b) of the Plan shall not apply to any
Option evidence by a Nonstatutory Stock Option Agreement which sets forth the
intention of the Company and the Optionee that such Option shall be a
Nonstatutory Stock Option.
(d) The Plan shall not confer upon any Optionee any right with
respect to continuation of employment with or consulting relationship with the
Company, nor shall it interfere in any way with his or her right or the
Company's right to terminate such employment or consulting relationship at any
time.
6. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company a described in Section 17 of the Plan. It shall
continue in effect until June 18, 2000, unless sooner terminated under Section
13 of the Plan.
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7. Term of Option. The term of teach Option shall be ten (10) years
from the date of grant thereof or such shorter term as may be provided in the
Option Agreement. However, in the case of an Incentive Stock Option granted ton
Optionee who, at the time the Option is granted, owns stock representing more
than ten percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the term of such Incentive Stock Option
shall be five (5) years from the date of grant thereof or such shorter term as
may be provided in the Incentive Stock Option Agreement.
8. Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Board, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an employee who, at the time of the
grant of such Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less than 110% of
the fair market value per Share on the date of grant or, if the Incentive Stock
Option is amended to reduce the per Share exercise price, no less than 110% of
the fair market value per Share on the date the Board approves such amendment.
(B) granted to any Employee, the per Share exercise
price shall be no less than 100% of the fair market value per Share on the date
of grant or, if the Incentive Stock Option is amended to reduce the per Share
exercise price, no less than 100% of the fair market value per Share on the date
the Board approves such amendment.
(ii) In the case of a Nonstatutory Stock Option, the per
Share exercise price shall be determined by the Administrator, but in no case
shall the per Share exercise price be less than 85% of the Fair Market Value per
Share on the date of grant; provided, however, that for any calendar year, the
aggregate number of Shares subject to Nonstatutory Options granted during such
calendar year with a per Share exercise price less that the Fair Market Value
per Share on the date of grant shall not exceed five percent of the number of
Shares subject to options granted in the preceding calendar year
(b) The fair market value per Share shall be determined by the
Board in its discretion; provided, however, that where there is a public market
for the Common Stock, the fair market value per Share shall be the mean of the
bid and asked prices (or the closing price per share if the Common Stock is
listed on the national Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System) of the Common Stock for the date of grant (or
date of approval of an amendment to reduce the exercise price per Share, as the
case may be), as reported in the Wall Street Journal (or, if not so reported, as
otherwise reported by the NASDAQ System) or, in the event the
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Common Stock is listed on a stock exchange, the fair market value per Share
shall be the closing price on such exchange on such date, as reported in the
Wall Street Journal.
(c) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined by
the Board and may consist entirely of (i) cash, (ii) check, (iii) delivery of
other shares of Common Stock of the Company, which (A) in the case of Shares
acquired upon exercise of an Option, have been owned by the Optionee for more
than six months on the date of surrender, and (B) have a value equal to the
exercise price of the Shares as to which the Option is being exercised, (iv)
promissory note, (v) delivery of a properly executed exercise notice together
with such other documentation as the Company and the broker, if applicable,
shall require to effect an exercise of the Option and delivery to the Company of
the sale or loan proceeds required to pay the exercise price, (vi) any
combination of such methods of payment or (vii) such other consideration and
method of payment for the issuance of Shares to the extent permitted under the
Delaware Corporation Law.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder.
(i) Any option granted hereunder shall be exercisable at
such times and under such conditions as may be determined by the Board,
including performance criteria with respect to the Company and/or the Optionee,
and as shall be permissible under the terms of the Plan.
(ii) An Option may not be exercised for a fraction of a
Share.
(iii) An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company in accordance with the
terms of the Option and full payment for the Shares with respect to which the
Option is exercised has been received by the Company. Full payment may, as
authorized by the Board, consist of any consideration and method of payment
allowable under Section 8(c) of the Plan. Until the issuance (as evidenced by
the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company) of the Stock certificate evidencing such Shares,
no right to vote or receive dividends or any other rights as a shareholder shall
exist with respect to the Optioned Stock, notwithstanding the exercise of the
Option. The Company shall issue (or cause to be issued) such stock certificate
promptly upon exercise of the Option. No adjustment will be made for a dividend
or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 11 of the Plan.
(iv) Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
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(b) Termination of Status as an Employee or Consultant. In the
event of termination of an Optionee's Continuous Status as an Employee or
Consultant (as the case may be), such Optionee may exercise his or her Option to
the extent that he or she was entitled to exercise it at the date of such
termination (or at such greater extent as the Board may determine). Any such
exercise must occur within the period set forth in the Option Agreement which,
in the case of an Incentive Stock Option, shall be no more than three (3) months
after the date of termination (and in any event such exercise shall be on or
before the expiration date of the Option as set forth in the Option Agreement).
The Option shall terminate on the date of such termination of Continuous Status
as an Employee or consultant to the extent of the number of shares of Optioned
Stock as to which the Option was not exercisable on the date of such
termination, as set forth in the Option Agreement or as the Board may otherwise
determine. To the extent the Optionee fails, within the time period specified in
the Option Agreement, to exercise the Option for those shares of Optioned Stock
as to which he or she is entitled to exercise, the Option shall terminate upon
the expiration of such time period.
(c) Disability of Optionee. Notwithstanding the provisions of
Section 9(b) above, in the event of termination of an Optionee's Continuous
Status as an Employee or Consultant as a result of his or her total and
permanent disability (as defined in Section 22(e)(3) of the Code), he or she may
exercise his or her Option to the extent he or she was entitled to exercise it
at the date of such termination (or to such greater extent as the Board may
determine). Any such exercise must occur within the period set forth in the
Option Agreement which, in the case of an Incentive Stock Option, shall be no
more than twelve (12) months after the date of such termination (and in any
event such exercise shall be on or before the expiration date of the Option as
set forth in the Option Agreement). The Option shall terminate on the date of
such termination of Continuous Status as an Employee or Consultant to the extent
of the number of shares of Optioned Stock as to which the Option was not
exercisable on the date of such termination, as set forth in the Option
Agreement or as the Board may otherwise determine. To the extent the Optionee
fails, within the time period specified in the Option Agreement, to exercise the
Option for those shares of Optioned Stock as to which he or she is entitled to
exercise, the Option shall terminate upon the expiration of such time period.
(d) Death of Optionee. In the event of the death of an Optionee:
(i) during the term of the Option who is at the time of his
or her death an Employee or Consultant of the Company and who shall have been in
Continuous Status as an Employee or Consultant since the date of grant of the
Option, the Option may be exercised 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, and within the time period, set forth in the Option Agreement (or
such greater extent or time period as the Board may determine). In no event
shall the Option be exercised after the expiration date set forth in the Option
Agreement.
(ii) within three (3) months after the termination of
Continuous Status as an Employee or Consultant, the Option may be exercised by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or
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inheritance, but only to the extent, and within the time period, set forth in
the Option Agreement (or such greater extent or time period as the Board may
determine). In no event shall the Option be exercised after the expiration date
set forth in the Option Agreement.
10. Non-Transferability of Options. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization, Dissolution, Merger,
Asset Sale or Change of Control.
(a) Changes in Capitalization. Subject to any required action by
the shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option and the number of shares of Common Stock which have been
authorized for issuance under the Plan but as to which no Options have yet been
granted or which have been returned to the Plan upon cancellation or expiration
of an Option, as well as the price per share of Common Stock covered by each
such outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification of
the Common Stock, or any other increase or decrease in the number of issued
shares of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised it will terminate immediately prior to the
consummation of such proposed action. The Board may, the exercise of its sole
discretion in such instances, declare that any Option shall terminate as of a
date fixed by the Board and give each Optionee the right to exercise his or her
Option as to all or any part of the Optioned Stock, including Shares as to which
the Option would not otherwise be exercisable.
(c) Merger or Asset Sale. In the event of a merger of the Company
with or into another corporation or the sale of substantially all of the assets
of the Company, each outstanding Option shall be assumed or an equivalent option
substituted by the successor corporation or a Parent or Subsidiary of the
successor corporation (the "Successor Corporation"), unless the Successor
Corporation refuses to assume or substituute for the Option, in which case the
Optionee shall have the right to exercise the Option as to all of the Optioned
Stock, including Shares as to which it would not otherwise be exercisable. If an
Option is exercisable in lieu of assumption or substitution
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in the event of a merger or sale of asets, the Administrator shall notify the
Optionee in writing or electronically that the Option shall be fully exercisable
for a period of not less than forty-five (45) days from the date of such notice,
and upon the expiration of such period the Option shall terminate.
For the purposes of this Section 11(c), an Option shall be considered
assumed if, following the merger or sale of assets, the Option confers the right
to purchase or receive, for each Share of Optioned Stock subject to the Option
immediately prior to the merger or sale of assets, the consideration (whether
stock, cash, or other securities or property) received in the merger or sale of
assets by holders of Common Stock for each Share held on the effective date of
the transaction (and if holders were offered a choice of consideration, the type
of consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets was not solely common stock of the Successor Corporation, the
Administrator may, with the consent of the Successor Corporation, provide for
the consideration to be received upon the exercise of the Option, for each Share
of Optioned Stock subject to the Option, to be solely common stock of the
Successor Corporation equal in fair market value to the per share consideration
received by holders of Common Stock in the merger or sale of assets.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Board makes the determination granting
such Option. Notice of the determination shall be given to each Employee or
Consultant to whom an Option is so granted within a reasonable time after the
date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or discontinue the Plan, but no amendment, alternation,
suspension or discontinuation shall be made which would impair the rights of any
Optionee under any grant theretofore made, without his or her consent. In
addition, to the extent necessary and desirable to comply with Rule 16b-3
promulgated under the Exchange Act (or any other applicable law or regulation),
the Company shall obtain stockholder approval of any amendment to the Plan in
such manner and to such degree as is required.
(b) Effect of Amendment. No such amendment, alteration, suspension
or discontinuation of the Plan shall affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended, altered, suspended or discontinued, unless mutually agreed otherwise
between the Optionee and the Company, which agreement must be in writing and
signed by the Optionee and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange or quotation system upon
which the Shares may then be listed or quoted, and
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shall be further subject to the approval of counsel for the Company with respect
to such compliance.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
16. Option Agreement. Options shall be evidenced by Option Agreements in
such form as the Board shall approve.
17. Stockholder Approval. Continuance of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such approval, and approval for any
amendment to the Plan requiring stockholder approval pursuant to Section 13 of
the Plan, shall be obtained in the degree and manner required under applicable
state and federal law.
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SYBASE, INC.
INCENTIVE STOCK OPTION AGREEMENT
Sybase, Inc., a Delaware corporation (the "Company"), has granted to the
person whose name is written on the first page hereof (the "Optionee"), an
option to purchase the number of shares of Common Stock stated on the first page
hereof, at the price determined as provided herein, and in all respects subject
to the terms, definitions and provisions of the 1988 Stock Option Plan (the
"Plan") adopted by the Company which is incorporated herein by reference. The
terms defined in the Plan shall have the same defined meanings herein.
1. Nature of the Option. This Option is intended to qualify as an
Incentive Stock Option as defined in Section 422 of the Code.
2. Exercise Price. The exercise price for each share of Common Stock is
as stated on the first page hereof.
3. Exercise of Option. This Option shall be exercisable during its term
in accordance with the provisions of Section 9 of the Plan as follows:
(i) Right to Exercise.
(a) Subject to subsections 3(i)(b), (c), (d) and (e) below,
this Option shall be exercisable cumulatively, to the extent of 1/8 of the
Shares subject to the Option six months after the Vesting Start Date written on
the first page of this Incentive Stock Option Agreement and an additional 1/48
of the Shares subject to the Option for each month which has expired thereafter.
(b) This Option may not be exercised for a fraction of a
share.
(c) In the event of Optionee's death, disability or other
termination of employment, the exercisability of the Option is governed by
Sections 6, 7 and 8 below, subject to the limitations contained in subsections
3(i)(d) and (e).
(d) In no event may this Option be exercised after the date
of expiration of this Option as set forth on the first page of this Incentive
Stock Option Agreement.
(e) To the extent that the aggregate fair market value of
all Shares subject to an Optionee's Incentive Stock Options (granted by the
Company, any Parent or Subsidiary) which first become exercisable during any
calendar year (under all plans of the Company, any Parent or Subsidiary)
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exceeds $100,000, such excess Options shall be treated as Nonstatutory Stock
Options. For purposes of this Section 3(i)(e), Incentive stock Options shall be
taken into account in the order in which they were granted, and the fair market
value of the Shares shall be determined as of the time of grant.
(ii) Method of Exercise. This Option shall be exercisable by
written notice in the form of Exhibit A attached hereto which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised, and such other representations and agreements as to
the holder's investment intent with respect to such shares of Common Stock as
may be required by the Company pursuant to the provisions of the Plan. Such
written notice shall be signed by the Optionee and shall be delivered in person
or by certified mail to the Secretary of the Company. The written notice shall
be accompanied by payment of the exercise price. This Option shall be deemed to
be exercised upon receipt by the Company of such written notice accompanied by
the exercise price.
No Shares will be issued pursuant to the exercise of an Option unless such
issuance and such exercise shall comply with all relevant provisions of law and
the requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
4. Method of Payment. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(i) cash;
(ii) check;
(iii) delivery of other shares of Common Stock of the Company, which
(A) in the case of Shares acquired upon exercise of an option, have been owned
by the Optionee for more than six months on the date of surrender, and (B) have
a value equal to the exercise price of the Shares as to which the Option is
being exercised; or
(iv) delivery of a properly executed exercise notice together with
such other documentation as the Company and the broker, if applicable, shall
require to effect an exercise of the Option and delivery to the Company of the
sale or loan proceeds required to pay the exercise price.
5. Restrictions on Exercise. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and
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warranty to the Company as may be required by any applicable law or regulation.
6. Termination of Status as an Employee. In the event of termination of
Optionee's Continuous Status as an Employee, Optionee may, but only within three
(3) months after the date of such termination (but in no event later than the
expiration date of this Option as set forth on the first page of this Incentive
Stock Option Agreement), exercise this Option to the extent that he or she was
entitled to exercise it at the date of such termination. To the extent that
Optionee is not entitled to exercise this Option at the date of such
termination, this Option shall terminate as of the date of such termination. To
the extent Optionee does not exercise the balance of this Option within the time
period specified herein, the Option shall terminate as of the expiration of such
time period.
7. Disability of Optionee. Notwithstanding the provisions of Section 6
above, in the event of termination of Optionee's Continuous Status as an
Employee as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the Code), Optionee may, but only within twelve (12) months
from the date of termination of employment (but in no event later than the
expiration date of this Option as set forth on the first page of this Incentive
Stock Option Agreement) exercise this Option to the extent he or she was
entitled to exercise it at the date of such termination. To the extent that
Optionee was not entitled to exercise this Option at the date of termination
this Option shall terminate as of the date of such termination. To the extent
Optionee does not exercise the balance of this Option within the time specified
herein, the Option shall terminate as of the expiration of such time period.
8. Death of Optionee. In the event of the death of Optionee:
(i) during the term of this Option and while an Employee of the
Company and having been in Continuous Status as an Employee since the date of
grant of the Option, the Option may be exercised, at any time within twenty-four
(24) months following the date of death (but in no event later than the
expiration date of this Option as set forth on the first page of this Incentive
Stock Option Agreement), by 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 it at the date of death. To the extent
this Option is not exercisable at the date of death, this Option shall terminate
on the date of death. To the extent the balance of this Option is not exercised
within the time period specified herein, the Option shall terminate as of the
expiration of such time period; or
(ii) within three (3) months after the termination of Optionee's
Continuous Status as an Employee, the Option may be exercised, at any time
14
within twenty-four (24) months following the date of death (but in no event
later than the expiration date of this Option as set forth on the first page of
this Incentive Stock Option Agreement), by Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent of the right to exercise that had accrued at the date of termination.
To the extent the balance of this Option is not exercised within such time
period, the Option shall terminate as of the expiration of such time period.
9. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by him or her. The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
10. Early Disposition of Stock. Optionee understands that if he or she
disposes of any Shares issued upon exercise of this Option within two (2) years
after the date of grant set forth on the cover page of this Incentive Stock
Option Agreement or within one (1) year after the date of such exercise,
Optionee will be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount generally measured
by the difference between the price paid for the Shares and the lower of the
fair market value of the Shares at the date of the exercise or the fair market
value of the Shares at the date of disposition. The amount of such ordinary
income may be measured differently if Optionee is an officer, director or 10%
shareholder of the Company, or if the Shares were subject to a substantial risk
of forfeiture at the time they were transferred to Optionee. Optionee hereby
agrees to notify the Company in writing within 30 days after the date of any
such disposition. Optionee understands that if he or she disposes of such Shares
at any time after the expiration of such two-year and one-year holding periods,
any gain on such sale will be taxed as long-term capital gain.
15
SYBASE, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
Sybase, Inc., a Delaware corporation (the "Company"), has granted to the
person whose name is written on the first page hereof (the "Optionee"), an
option to purchase the number of shares (the "Shares") of Common Stock of the
Company stated on the first page hereof, at the price determined as provided
herein, and in all respects subject to the terms, definitions and provisions of
the 1988 Stock Option Plan (the "Plan") adopted by the Company which is
incorporated herein by reference. The terms defined in the Plan shall have the
same defined meanings herein.
1. Nature of the Option. This Option is intended by the Company and the
Optionee to be a nonstatutory stock option, and does not qualify for any special
tax benefits to the Optionee. This Option is not an Incentive Stock Option and
is not subject to Section 5(b) of the Plan.
2. Exercise Price. The exercise price for each share of Common Stock is
as stated on the first page hereof.
3. Exercise of Option. This Option shall be exercisable during its term
in accordance with the provisions of Section 9 of the Plan as follows:
(i) Right to Exercise.
(a) Subject to subsections 3(i)(b), (c) and (d) below, this
Option shall be exercisable cumulatively, to the extent of 1/8 of the Shares
subject to the Option six months after the Vesting Start Date written on the
first page of this Nonstatutory Stock Option Agreement and an additional 1/48 of
the Shares for each month which has expired thereafter.
(b) This Option may not be exercised for a fraction of a
share.
(c) In the event of Optionee's death, disability or other
termination of employment or consulting relationship, the exercisability of the
Option is governed by Sections 6, 7 and 8 below, subject to the limitation
contained in subsection 3(i)(d).
(d) In no event may this Option be exercised after the date
of expiration of the term of this Option as set forth on the first page of this
Nonstatutory Stock Option Agreement.
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(ii) Method of Exercise. This Option shall be exercisable by
written notice in the form of Exhibit A attached hereto which shall state the
election to exercise the Option, the number of Shares in respect of which the
Option is being exercised, and such other representations and agreements as to
the holder's investment intent with respect to such shares of Common Stock as
may be required by the Company pursuant to the provisions of the Plan. Such
written notice shall be signed by the Optionee and shall be delivered in person
or by certified mail to the Secretary of the Company. The written notice shall
be accompanied by payment of the exercise price. This Option shall be deemed to
be exercised upon receipt by the Company of such written notice accompanied by
the exercise price.
No Shares will be issued pursuant to the exercise of an Option unless such
issuance and such exercise shall comply with all relevant provisions of law and
the requirements of any stock exchange upon which the Shares may then be listed.
Assuming such compliance, for income tax purposes the Shares shall be considered
transferred to the Optionee on the date on which the Option is exercised with
respect to such Shares.
4. Method of Payment. Payment of the exercise price shall be by any of
the following, or a combination thereof, at the election of the Optionee:
(i) cash;
(ii) check;
(iii) delivery of other shares of Common Stock of the Company, which
(A) in the case of Shares acquired upon exercise of an option, have been owned
by the Optionee for more than six months on the date of surrender, and (B) have
a value equal to the exercise price of the Shares as to which the Option is
being exercised; or
(iv) delivery of a properly executed exercise notice together with
such other documentation as the Board and the broker, if applicable, shall
require to effect an exercise of the Option and delivery to the Company of the
sale or loan proceeds required to pay the exercise price.
5. Restrictions on Exercise. As a condition to the exercise of this
Option, the Company may require Optionee to make any representation and warranty
to the Company as may be required by any applicable law or regulation.
17
6. Termination of Status as an Employee or Consultant. In the event of
termination of Optionee's Continuous Status as an Employee or Consultant (as the
case may be), Optionee may, but only within three (3) months after the date of
such termination (but in no event later than the expiration date of this Option
as set forth on the first page of this Nonstatutory Stock Option Agreement),
exercise this Option to the extent that he or she was entitled to exercise it at
the date of such termination. To the extent that Optionee is not entitled to
exercise this Option at the date of such termination, this Option shall
terminate as of the date of such termination. To the extent Optionee does not
exercise the balance of this Option within the time period specified herein, the
Option shall terminate as of the expiration of such time period.
7. Disability of Optionee. Notwithstanding the provisions of Section 6
above, in the event of termination of Optionee's Continuous Status as an
Employee or Consultant (as the case may be) as a result of his or her total and
permanent disability (as defined in Section 22(e)(3) of the Code), Optionee may,
but only within twelve (12) months from the date of termination of his or her
employment or consulting relationship (but in no event later than the expiration
date of this Option as set forth on the first page of this Nonstatutory Stock
Option Agreement) exercise this Option to the extent he or she was entitled to
exercise it at the date of such termination. To the extent that Optionee was not
entitled to exercise this Option at the date of termination this Option shall
terminate as of the date of such termination. To the extent Optionee does not
exercise the balance of this Option within the time specified herein, the Option
shall terminate as of the expiration of such time period.
8. Death of Optionee. In the event of the death of Optionee:
(i) during the term of this Option and while an Employee or
Consultant of the Company and having been in Continuous Status as an Employee or
Consultant (as the case may be) since the date of grant of the Option, the
Option may be exercised, at any time within twenty-four (24) months following
the date of death (but in no event later than the expiration date of this Option
as set forth on the first page of this Nonstatutory Stock Option Agreement), by
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 it at the date of death. To the extent this Option is not exercisable
at the date of death, this Option shall terminate on the date of death. To the
extent the balance of this Option is not exercised within the time period
specified herein, the Option shall terminate as of the expiration of such time
period; or
(ii) within three (3) months after the termination of Optionee's
Continuous Status as an Employee or Consultant (as the case may be), the
18
Option may be exercised, at any time within twenty-four (24) months following
the date of death (but in no event later than the expiration date of this Option
as set forth on the first page of this Nonstatutory Stock Option Agreement), by
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, but only to the extent of the right to exercise that
had accrued at the date of termination. To the extent the balance of this Option
is not exercised within such time period, the Option shall terminate as of the
expiration of such time period.
9. Non-Transferability of Option. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution and
may be exercised during the lifetime of Optionee only by him or her. The terms
of this Option shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
10. Taxation Upon Exercise of Option. Optionee understands that, upon
exercise of this Option, he or she will recognize income for tax purposes in an
amount equal to the excess of the then fair market value of the Shares over the
exercise price. If the Optionee is also an Employee, the Company will be
required to withhold tax from Optionee's current compensation with respect to
such income; to the extent that Optionee's current compensation is insufficient
to satisfy the withholding tax liability, the Company may require the Optionee
to make a cash payment to cover such liability as a condition to exercise of
this Option. Upon a resale of such shares by the Optionee, any difference
between the sale price and the fair market value of the shares on the date of
exercise of the Option will be treated as capital gain or loss.