Exhibit 10.8
1994 STOCK OPTION AND AWARD PLAN
NOTICE OF PERFORMANCE SHARE AWARD
Unless otherwise defined herein, the terms defined in the Plan shall
have the same defined meanings in this Notice of Award.
[NAME]
[ADDRESS]
You have been awarded the right to receive (without payment to the
Company of any consideration by you) Common Stock of the Company (the
"Shares), if you achieve the performance goal set forth below. The Shares
will be subject to the Company's Reacquisition Option, which will lapse
(based on your ongoing status as an employee, director or consultant to the
Company (a "Service Provider")), according to the schedule set forth in the
attached Restricted Stock Agreement. If you do not achieve the Performance
Goal, you will have no right whatsoever to the Shares.
Date of Award
Total Number of Shares Subject
to Award
Performance Goal
By your signature and the signature of the Company's representative
below, you and the Company agree that the Shares are granted under and
governed by the terms and conditions of the 1994 Stock Option and Award Plan,
which is made a part of this document. You further agree to execute the
attached Restricted Stock Agreement as a condition to acquiring the Shares.
GRANTEE INFORMIX CORPORATION
______________________________ __________________________________
Signature By
______________________________ Its:______________________________
Print Name [TITLE]
1994 STOCK OPTION AND AWARD PLAN
RESTRICTED STOCK AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall
have the same defined meanings in this Restricted Stock Agreement.
WHEREAS the executive named in the Notice of Performance Share Award
(the "Executive") is a Service Provider, and the Executive's continued
service is considered by the Company to be vitally important to the Company's
success; and
WHEREAS the Executive has met the performance goal set forth in the
Notice of Performance Share Award and earned the right to acquire Common
Stock, subject to the terms and conditions of the Plan and the Notice of
Performance Share Award, which are incorporated herein by reference, and
pursuant to this Restricted Stock Agreement (the "Agreement");
NOW THEREFORE, the parties agree as follows:
1. TRANSFER OF STOCK. The Company hereby agrees to issue to the
Executive, and the Executive hereby accepts, the Shares on this ____ day of
_________, 1998 (the "Date of Transfer").
2. REACQUISITION OPTION.
(a) The Company shall, upon the date (as reasonably fixed and
determined by the Company) the Executive ceases to be a Service Provider for
any or no reason (including death or disability) have an irrevocable,
exclusive option (the "Reacquisition Option") for a period of sixty (60) days
from the date of such termination to reacquire up to that number of shares
which constitute the Unreleased Shares (as defined in Section 3) without
payment of any consideration to the Executive. The Reacquisition Option
shall be exercised by the Company by delivering written notice to the
Executive or the Executive's executor (with a copy to the Escrow Holder).
Upon delivery of such notice the Company shall become the legal and
beneficial owner of the Shares being reacquired and all rights and interests
therein or relating thereto, and the Company shall have the right to retain
and transfer to its own name the number of Shares being reacquired by the
Company.
(b) Whenever the Company shall have the right to reacquire Shares
hereunder, the Company may designate and assign one or more employees,
officers, directors or shareholders of the Company or other persons or
organizations to exercise all or a part of the Company's rights under this
Agreement and reacquire all or a part of such Shares, provided that any such
designee or assignee shall pay the Company cash equal to the fair market
value at the time of reacquisition.
3. RELEASE OF SHARES FROM REACQUISITION OPTION.
(a) [100% OF THE SHARES SHALL BE RELEASED FROM THE COMPANY'S
REACQUISITION OPTION ON DECEMBER 31, 2000, PROVIDED THAT THE EXECUTIVE
CONTINUES TO BE A SERVICE PROVIDER ON SUCH DATE.]
(b) 100% of the Shares shall be released from the Company's
Reacquisition Option if the Executive's status as a Service Provider
terminates by reason of death, Disability or mutually agreed upon retirement.
(c) Any of the Shares that have not yet been released from the
Reacquisition Option are referred to herein as "Unreleased Shares."
(d) The Shares that have been released from the Reacquisition
Option shall be delivered to the Executive at the Executive's request (see
Section 5).
4. RESTRICTION ON TRANSFER. Except for the escrow described in
Section 5, or the transfer of the Shares to the Company or its assignees
contemplated by this Agreement, none of the Shares or any beneficial interest
therein shall be transferred, encumbered or otherwise disposed of in any way
until such Shares are released from the Company's Reacquisition Option in
accordance with the provisions of this Agreement, other than by will or the
laws of descent and distribution.
5. ESCROW OF SHARES.
(a) To ensure the availability for delivery of the Unreleased
Shares pursuant to the Reacquisition Option, the Executive shall, upon
execution of this Agreement, deliver and deposit with an escrow holder
designated by the Company (the "Escrow Holder") the share certificates
representing the Unreleased Shares, together with the stock assignment duly
endorsed in blank, attached hereto as Exhibit A. The Unreleased Shares and
stock assignment shall be held by the Escrow Holder, pursuant to the Joint
Escrow Instructions of the Company and Executive attached hereto as Exhibit
B, until such time as the Company's Reacquisition Option expires. As a
further condition to the Company's obligations under this Agreement, the
Company may require the spouse of Executive, if any, to execute and deliver
to the Company the Consent of Spouse attached hereto as Exhibit C.
(b) The Escrow Holder shall not be liable for any act it may do or
omit to do with respect to holding the Unreleased Shares in escrow while
acting in good faith and in the exercise of its judgment.
(c) If the Company or any assignee exercises the Reacquisition
Option hereunder, the Escrow Holder, upon receipt of written notice of such
exercise from the proposed transferee, shall take all steps necessary to
accomplish such transfer.
(d) When the Reacquisition Option has been exercised or expires
unexercised or a portion of the Shares has been released from the
Reacquisition Option, upon request the Escrow Holder shall promptly cause a
new certificate to be issued for the released Shares and shall deliver the
certificate to the Company or the Executive, as the case may be.
(e) Subject to the terms hereof, the Executive shall have all the
rights of a shareholder with respect to the Shares while they are held in
escrow, including without limitation, the right to vote the Shares and to
receive any cash dividends declared thereon. If, from time to time
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during the term of the Reacquisition Option, there is (i) any stock dividend,
stock split or other change in the Shares, or (ii) any merger or sale of all
or substantially all of the assets or other acquisition of the Company, any
and all new, substituted or additional securities to which the Executive is
entitled by reason of the Executive's ownership of the Shares shall be
immediately subject to this escrow, deposited with the Escrow Holder and
included thereafter as "Shares" for purposes of this Agreement and the
Reacquisition Option.
6. LEGENDS. The share certificate evidencing the Shares, if any,
issued hereunder shall be endorsed with the following legend (in addition to
any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REACQUISITION AS SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY.
7. ADJUSTMENT FOR STOCK SPLIT. All references to the number of Shares
and the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
8. TAX CONSEQUENCES. The Executive has reviewed with the Executive's
own tax advisors the federal, state and local tax consequences of the
transactions contemplated by this Agreement. The Executive is relying solely
on such advisors and not on any statements or representations of the Company
or any of its agents. The Executive understands that the Executive (and not
the Company) shall be responsible for the Executive's own tax liability that
may arise as a result of the transactions contemplated by this Agreement.
The Executive understands that Section 83 of the Internal Revenue Code of
1986, as amended (the "Code"), taxes as ordinary income the Fair Market Value
of the Shares as of the date any restrictions on the Shares lapse. In this
context, "restriction" includes the right of the Company to reacquire the
Shares pursuant to the Reacquisition Option. The Executive understands that
the Executive may elect to be taxed at the time the Shares are acquired
rather than when and as the Reacquisition Option expires by filing an
election under Section 83(b) of the Code with the IRS within 30 days from the
date of acquisition. The form for making this election is attached as
Exhibit D hereto.
THE EXECUTIVE ACKNOWLEDGES THAT IT IS THE EXECUTIVE'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER
SECTION 83(B), EVEN IF THE EXECUTIVE REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON THE EXECUTIVE'S BEHALF.
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9. GENERAL PROVISIONS.
(a) This Agreement shall be governed by the internal substantive
laws, but not the choice of law rules of California. This Agreement, subject
to the terms and conditions of the Plan and the Notice of Performance Share
Award, represents the entire agreement between the parties with respect to
the acquisition of the Shares by the Executive. Subject to Section 9.1 of
the Plan, in the event of a conflict between the terms and conditions of the
Plan and the terms and conditions of this Agreement, the terms and conditions
of the Plan shall prevail. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Agreement.
(b) Any notice, demand or request required or permitted to be
given by either the Company or the Executive pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally or deposited in the U.S. mail, First Class with postage prepaid,
and addressed to the parties at the addresses of the parties set forth at the
end of this Agreement or such other address as a party may request by
notifying the other in writing.
Any notice to the Escrow Holder shall be sent to the Company's
address with a copy to the other party hereto.
(c) The rights of the Company under this Agreement shall be
transferable to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by,
the Company's successors and assigns. The rights and obligations of the
Executive under this Agreement may only be assigned with the prior written
consent of the Company.
(d) Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such
provision, nor prevent that party from thereafter enforcing any other
provision of this Agreement. The rights granted both parties hereunder are
cumulative and shall not constitute a waiver of either party's right to
assert any other legal remedy available to it.
(e) The Executive agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
(f) EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO SECTION 3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS A
SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING
HIRED OR ACQUIRING SHARES HEREUNDER). EXECUTIVE FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE
VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED
PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD,
FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH EXECUTIVE'S RIGHT OR
THE COMPANY'S RIGHT TO TERMINATE EXECUTIVE'S RELATIONSHIP AS A SERVICE
PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
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By Executive's signature below, Executive represents that he or she is
familiar with the terms and provisions of the Plan, and hereby accepts this
Agreement subject to all of the terms and provisions thereof. Executive has
reviewed the Plan and this Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of this Agreement. Executive agrees to
accept as binding, conclusive and final all decisions or interpretations of
the Administrator upon any questions arising under the Plan or this
Agreement. Executive further agrees to notify the Company upon any change in
the residence indicated in the Notice of Performance Share Award.
DATED:________________________
EXECUTIVE INFORMIX CORPORATION
______________________________ _________________________________
Signature By:
______________________________ Its:_____________________________
Print Name Title
______________________________
Social Security Number
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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I, __________________________, hereby sell, assign
and transfer unto ___________________________________________ (__________)
shares of the Common Stock of Informix Corporation standing in my name on the
books of said corporation represented by Certificate No. _____ herewith and
do hereby irrevocably constitute and appoint ________________________________
to transfer the said stock on the books of the within named corporation with
full power of substitution in the premises.
This Stock Assignment may be used only in accordance with the Restricted
Stock Agreement (the "Agreement") between _________________________________
and the undersigned dated ______________, 19__.
Dated: _________________________, 19____
Signature:______________________________
INSTRUCTIONS: Please do not fill in any blanks other than the signature
line. Do not date. The purpose of this assignment is to enable the Company
to exercise the Reacquisition Option, as set forth in the Agreement, without
requiring additional signatures on the part of the Executive.
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
_________________, 19___
Corporate Secretary
Informix Corporation
4100 Bohannon Drive
Menlo Park, California 94025
Dear____________________:
As Escrow Agent for both Informix Corporation, a Nevada corporation (the
"Company"), and the undersigned Executive of stock of the Company (the
"Executive"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Restricted Stock
Agreement ("Agreement") between the Company and the undersigned, in
accordance with the following instructions:
1. In the event the Company and/or any assignee of the Company
(referred to collectively as the "Company") exercises the Company's
Reacquisition Option set forth in the Agreement, the Company shall give to
Executive and you a written notice specifying the number of shares of stock
to be acquired, the acquisition price, and the time for a closing hereunder
at the principal office of the Company. Executive and the Company hereby
irrevocably authorize and direct you to close the transaction contemplated by
such notice in accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, for the number of shares of stock being reacquired pursuant to the
exercise of the Company's Reacquisition Option.
3. Executive irrevocably authorizes the Company to deposit with you
any certificates evidencing shares of stock to be held by you hereunder and
any additions and substitutions to said shares as defined in the Agreement.
Executive does hereby irrevocably constitute and appoint you as Executive's
attorney-in-fact and agent for the term of this escrow to execute with
respect to such securities all documents necessary or appropriate to make
such securities negotiable and to complete any transaction herein
contemplated, including but not limited to the filing with any applicable
state blue sky authority of any required applications for consent to, or
notice of transfer of, the securities. Subject to the provisions of this
paragraph 3, Executive shall exercise all rights and privileges of a
shareholder of the Company while the stock is held by you.
4. Upon written request of the Executive, but no more than once per
calendar year, unless the Company's Reacquisition Option has been exercised,
you shall deliver to Executive a certificate or certificates representing so
many shares of stock as are not then subject to the Company's Reacquisition
Option. Within 90 days after Executive ceases to be a Service Provider, you
shall deliver to Executive a certificate or certificates representing the
aggregate number of shares held or issued pursuant to the Agreement and not
reacquired by the Company or its assignees pursuant to exercise of the
Company's Reacquisition Option.
5. If at the time of termination of this escrow you should have in
your possession any documents, securities, or other property belonging to
Executive, you shall deliver all of the same to Executive and shall be
discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to
do hereunder as Escrow Agent or as attorney-in-fact for Executive while
acting in good faith, and any act done or omitted by you pursuant to the
advice of your own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law, and are
hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case you obey or comply with any such order,
judgment or decree, you shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such compliance,
notwithstanding any such order, judgment or decree being subsequently
reversed, modified, annulled, set aside, vacated or found to have been
entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or
called for hereunder.
10. You shall not be liable for the outlawing of any rights under the
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with
your obligations hereunder, may rely upon the advice of such counsel, and may
pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be an officer or agent of the Company or if you shall
resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
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13. If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such
instruments.
14. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain
in your possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by mutual
written agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but you shall be under no duty
whatsoever to institute or defend any such proceedings.
15. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail
with postage and fees prepaid, addressed to each of the other parties
thereunto entitled at the following addresses or at such other addresses as a
party may designate by ten days' advance written notice to each of the other
parties hereto.
COMPANY: Informix Corporation
4100 Bohannon Drive
Menlo Park, California 94025
EXECUTIVE: __________________________________
__________________________________
__________________________________
ESCROW AGENT: Corporate Secretary
Informix Corporation
4100 Bohannon Drive
Menlo Park, California 94025
16. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not
become a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
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18. These Joint Escrow Instructions shall be governed by, and construed
and enforced in accordance with, the internal substantive laws, but not the
choice of law rules, of California.
Very truly yours,
INFORMIX CORPORATION
__________________________________
By:
Its:______________________________
Title
EXECUTIVE:
__________________________________
Signature
__________________________________
Print Name
ESCROW AGENT:
___________________________________________
Corporate Secretary of Informix Corporation
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EXHIBIT C
CONSENT OF SPOUSE
I, ____________________, spouse of ___________________, have read and
approve the foregoing Restricted Stock Agreement (the "Agreement"). In
consideration of the Company's grant to my spouse of the shares of Informix
Corporation, as set forth in the Agreement, I hereby appoint my spouse as my
attorney-in-fact in respect to the exercise of any rights under the Agreement
and agree to be bound by the provisions of the Agreement insofar as I may
have any rights in said Agreement or any shares issued pursuant thereto under
the community property laws or similar laws relating to marital property in
effect in the state of our residence as of the date of the signing of the
foregoing Agreement.
Dated: _______________, 19____
__________________________________
Signature of Spouse
__________________________________
Printed Name
EXHIBIT D
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross
income for the current taxable year the amount of any compensation taxable to
taxpayer in connection with his or her receipt of the property described
below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME: TAXPAYER:________________________ SPOUSE:_____________________
ADDRESS:________________________________________________________________
IDENTIFICATION NO.: TAXPAYER:________________ SPOUSE:________________
TAXABLE YEAR:________
2. The property with respect to which the election is made is described as
follows: ____________ shares (the "Shares") of the Common Stock of
Informix Corporation (the "Company").
3. The date on which the property was transferred is: _______________, 19__.
4. The property is subject to the following restrictions:
The Shares may be reacquired by the Company, or its assignee, upon certain
events. This right lapses with regard to a portion of the Shares based on
the continued performance of services by the taxpayer over time.
5. The fair market value at the time of transfer, determined without regard
to any restriction other than a restriction which by its terms will never
lapse, of such property is:
$_______________.
6. The amount (if any) paid for such property is:
$_______________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of
the above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
THE UNDERSIGNED UNDERSTANDS THAT THE FOREGOING ELECTION MAY NOT BE REVOKED
EXCEPT WITH THE CONSENT OF THE COMMISSIONER.
Dated:_________________, 19____ ______________________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated:_________________, 19____ ______________________________________
Spouse of Taxpayer