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EXHIBIT 10.2
OMNIS TECHNOLOGY CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement ("Agreement") is made and entered
into on November 23, 1999 ("Grant Date") by and between Omnis Technology
Corporation, a Delaware corporation (the "Company"), and XXXXX XXXXX
("Optionee").
W I T N E S S E T H:
A. The Board of Directors of the Company ("Board") has adopted the Omnis
Technology Corporation 1999 Stock Option Plan to create additional incentives
for certain valued employees, directors, consultants and advisors of the Company
or its parent or subsidiary and to promote the financial success and progress of
the Company and such parents and subsidiaries. For purposes hereof the "Plan"
and all section references therein shall be defined as said 1999 Stock Option
Plan as amended or superseded during the term of this Agreement.
B. Optionee is a valued employee and director of the Company or a parent
or subsidiary thereof, and this Incentive Stock Option Agreement is executed
pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the grant by the Company to Optionee of an incentive stock
option as defined by Section 422 of the Internal Revenue Code of 1986, as
amended or superseded (the "Code").
NOW, THEREFORE, it is agreed as follows:
1. Grant of Option. Subject to and upon the terms, conditions and
restrictions set forth in this Agreement and the Plan, the Company hereby grants
to Optionee as of the Grant Date an incentive stock option ("Option") to
purchase up to Ninety Six Thousand Eight Hundred Twenty Five (96,825) shares
("Option Shares") of the common stock of the Company during the Term hereof (as
defined in Section 3 hereof) at the Option Price of Six Dollars and Eighty Seven
and Five Tenths Cents ($6.875) per share. For these purposes "Option Shares"
also shall include such stock or other securities as defined by the Plan.
2. Right to Exercise; Vesting.
a. Subject to the expiration or earlier termination of the Term
of the Option hereunder and to Section 2(b) hereof, Optionee shall have the
right to exercise the Option in accordance with the following three (3) year
vesting schedule ("Vesting Period"):
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(i) Optionee shall have no right to exercise any part of
the Option at any time prior to the expiration of one (1) year from the
Grant Date;
(ii) The Option shall become exercisable with respect to
Thirty Three and Three Hundred Thirty Three Thousandths Percent
(33.333%) of the Option Shares upon the expiration of one (1) year from
the Grant Date; and
(iii) The Option thereafter shall become exercisable
with respect to an additional Two Point Seven Hundred Seventy Seven
Thousandths Percent (2.777%) of the Option Shares on the last day of
each month thereafter.
b. Exercisable installments may be exercised by Optionee in
whole or in part and to the extent not exercised shall accumulate and be
exercisable as provided. The Company shall not be required to issue fractional
shares at any time; and any fractional shares remaining in the Option following
any exercise thereof shall be rounded down to the next nearest whole number of
Shares.
3. Option Term. The specified term of the Option ("Term") shall be the
period commencing as of the Grant Date and ending on the earlier of (i) the
expiration of ten (10) years from the Grant Date ("Expiration Date") or (ii) the
termination of this Agreement in accordance with Section 4 hereof. Upon the
expiration of the Term or earlier termination of the Option as herein provided,
the Option shall cease to be exercisable and shall be of no further force or
effect.
4. Earlier Termination of Option Term.
a. The Term of the Option shall terminate prior to the
Expiration Date upon the later to occur of any of the following events during
the Vesting Period:
(i) Termination of Directorship Other Than For Cause. If
(i) Optionee resigns as a director of the Company, or (ii) Optionee is
removed as a director of the Company without cause as defined by
applicable law, or (iii) Optionee is not re-elected as a director of the
Company by the shareholders following the end of the term of his
directorship ("Director Termination"), then the Option shall terminate
and cease to be exercisable upon the earlier of (A) the expiration of
sixty (60) days from the date of such Director Termination or (B) the
Expiration Date. No additional right to exercise the Option with respect
to any Option Shares shall vest from and after the date of such Director
Termination. The Term of the Option shall not be affected by any
Director Termination occurring after the end of the Vesting Period.
(ii) Termination of Employment or Engagement. If (i) the
employment of Optionee with the Company is terminated for any reason,
provided Optionee was so employed as of the date of the Director
Termination;
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or (ii) the engagement of Optionee as a consultant of the Company
pursuant to a written consulting agreement is terminated for any reason,
provided Optionee was so engaged as of the date of the Director
Termination; as the case may be, then the Option shall terminate and
cease to be exercisable upon the earlier of (A) the expiration of sixty
(60) days from the date of such termination of employment or engagement
or (B) the Expiration Date. No additional right to exercise the Option
with respect to any Option Shares shall vest from and after the date of
such termination of employment or engagement. The Term of the Option
shall not be affected by any termination of employment or engagement
occurring after the end of the Vesting Period.
b. Removal as a Director For Cause. Notwithstanding Section 4(a)
hereof, if Optionee is removed as a director "for cause" as defined by
applicable law at any time during the Term or Optionee resigns as a director
while his removal for cause is pending, then the Option shall terminate and
cease to be exercisable upon the earlier of (i) such termination of the
directorship of Optionee or (ii) the Expiration Date. No additional right to
exercise the Option with respect to any Option Shares shall vest from and after
the date of such termination of the directorship of Optionee.
c. Death or Disability. Notwithstanding Section 4(a) hereof, in
the event of the death or permanent and total disability of Optionee, then the
Option shall terminate and cease to be exercisable as provided in the Plan.
d. No Effect on Relationship. Nothing herein shall alter the "at
will" nature of the employment of Optionee by the Company; shall be deemed any
obligation by the Company to enter into or continue any consulting agreement
with Optionee; or shall be deemed an agreement that Optionee shall be elected as
or continue to be a director of the Company.
5. Non-Transferable. The Option shall not be transferable or assignable
by Optionee other than by will or the laws of descent and distribution, and the
Option may be exercised during the lifetime of Optionee solely by Optionee.
Subject to the foregoing, all transfers or assignments or attempted transfers or
assignments of the Option or this Agreement shall be void ab initio.
6. Plan; Controlling Terms.
a. The Option granted hereunder and this Agreement shall be
governed by and subject to each and all of the terms and provisions of the Plan,
which is hereby incorporated by reference in its entirety. All capitalized or
other terms not defined herein shall have the same meaning as in the Plan. In
the event of any conflict between the Plan and this Agreement, the Plan shall
control, except if any provision of the Plan conflicts with Section 4 hereof
related to earlier termination of the Option, such Section 4 shall control.
Optionee acknowledges receipt of a copy of the Plan and the opportunity to
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review the Plan and to consult with his or her legal advisors concerning the
Plan and this Agreement.
b. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE PLAN CONTAINS
IMPORTANT TERMS AND PROVISIONS THAT WILL APPLY TO AND CONTROL THE OPTION AND
THIS AGREEMENT. THOSE TERMS INCLUDE WITHOUT LIMITATION IMPORTANT CONDITIONS AND
LIMITATIONS ON THE RIGHT OF OPTIONEE TO EXERCISE THE OPTION; IMPORTANT
RESTRICTIONS ON THE RIGHT OF OPTIONEE TO TRANSFER THE OPTION OR THE OPTION
SHARES RECEIVED UPON EXERCISE OF THE OPTION; EARLY TERMINATION OF THE OPTION
FOLLOWING THE OCCURRENCE OF CERTAIN EVENTS, INCLUDING TERMINATION OF THE
EMPLOYMENT OF OPTIONEE FOR ANY REASON; PROCEDURES FOR EXERCISING THE OPTION; TAX
WITHHOLDING AND NOTICE OBLIGATIONS; AND OTHER SUBSTANTIAL RESTRICTIONS AND
OBLIGATIONS IN ADDITION TO THOSE IN THIS AGREEMENT.
7. Tax Status of Option.
a. The Option is intended to be an incentive stock option as
defined by Section 422 of the Code for United States tax purposes, but the
Company does not represent or warrant that the Option so qualifies. Optionee
should consult with his or her own tax advisors regarding the tax effects of the
Option and the requirements for favorable tax treatment under Section 422 and
other provisions of the Code and other tax consequences of the Option under
applicable law, including but not limited to holding period requirements. In the
event that the aggregate exercise price of the Option Shares under the Option
and all other incentive stock options held by Optionee (whether granted by the
Company or any parent or subsidiary corporation thereof) exceeds the dollar
amount or other limitation then applicable under the Code when such options are
first exercisable or in the event Optionee does not meet all requirements when
applicable under the Code, all or part of the Option may not qualify as an
incentive stock option under the Code.
b. Optionee hereby acknowledges that the rules and requirements
of Section 83 of the Code, including without limitation the election available
under Section 83(b) thereof, may be applicable to the receipt of Option Shares
by Optionee pursuant to this Agreement and the Plan. In the event that the
Option or any part thereof is not classified as an incentive stock option under
Section 422 of the Code, Optionee acknowledges that the exercise of the Option
and the filing or failure to file an election under Code Section 83(b) in timely
manner may result in adverse tax consequences to Optionee.
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8. Acceleration of Exercise Right In Certain Events.
a. Acceleration Events. Notwithstanding any other right to
exercise the Option, the Option shall become fully exercisable during the
fifteen (15) day period ("Accelerated Exercise Period") immediately prior to the
scheduled consummation of:
(i) The sale or other transfer of more than Fifty
Percent (50%) of the capital stock of the Company in one or more related
transactions for material consideration to any person or entity or group
of persons or entities not previously shareholders of the Company and
not owned or controlled by a majority of the previous shareholders of
the Company, with such shareholder status determined immediately prior
to the transaction; or
(ii) The sale or other transfer of all or substantially
all of the assets of the Company in one or more related transactions not
in the ordinary course of the business of the Company to unrelated third
parties, whether by sale, exchange, merger, consolidation,
reorganization, dissolution or liquidation (collectively "Acceleration
Events");
other than (1) any public offering of capital stock of the Company in a Public
Market (as defined in the Plan); (2) any transaction in which the Company is a
surviving parent of the transferee corporation or entity or is a surviving
subsidiary of a transferee parent corporation or entity owned or controlled by a
majority of the previous shareholders of the Company, with such shareholder
status determined immediately prior to the transaction; (3) any sale or transfer
of the capital stock owned or controlled by the majority shareholder or
shareholders of the Company to trusts or comparable entities for the primary
benefit of such shareholders or their family members or to the estate, heirs or
devisees of any such shareholder in the event of his or her death; or (4) any
transaction in which the Company reincorporates in another jurisdiction or
engages in other internal reorganization or changes in corporate structure
without the receipt of consideration; none of which shall be Acceleration Events
hereunder.
b. Substitution or Assumption of Option. Notwithstanding any
other provision hereof, no accelerated exercise of the Option shall be permitted
if the terms of the Acceleration Event provide, as a condition of the
consummation of such transaction, that the Option (or class of outstanding
options of which the Option is a part) shall either be assumed by a successor
corporation (or parent thereof) or be replaced with a comparable substitute
option to purchase shares of capital stock of a successor corporation (or parent
thereof), which substitution or assumption shall comply with Sections 422 and
424 of the Code; and the Option may be assumed or replaced pursuant to such
transaction. Determination of comparability in the case of any substitute option
shall be made by the Board of Directors of the Company and shall be final,
binding and conclusive on Optionee.
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Optionee agrees to execute and deliver such documents as reasonably required to
effect such assumption or substitution hereunder.
c. Conditional Exercise; Termination. Any permitted exercise of
the Option during the Accelerated Exercise Period hereunder shall be conditioned
upon the consummation of the Acceleration Event and shall be effective only
immediately prior to such consummation, provided that Optionee may indicate in
writing that such exercise is unconditional with respect to all or part of the
Option then exercisable without regard to the acceleration provisions of this
Section. Upon consummation of the Acceleration Event, the Option shall terminate
and cease to be exercisable, unless assumed by the successor corporation or
parent thereof. In the event such Acceleration Event is not consummated, the
Option shall revert to being exercisable in accordance with the vesting
schedule.
d. Exercise Period. In the event the expiration or earlier
termination of the Term of the Option shall occur prior to the expiration of the
Accelerated Exercise Period provided in this Section, then the Accelerated
Exercise Period shall be shortened to said expiration or earlier termination of
the Term.
9. Limitations on Share Transfer; Mandatory Notice of Disposition.
Optionee shall transfer or dispose of the Option Shares only in accordance with
the provisions of this Agreement and the Plan. Without limiting the foregoing,
mandatory notice of disposition of any Option Shares must be made to the Company
as provided in the Plan and such disposition may be subject to tax withholding
or payments by Optionee.
10. Securities Laws; Restrictions on Grant or Issuance. THE RESTRICTIONS
ON THE TRANSFER OF THE OPTION OR THE OPTION SHARES SHALL BE IN ADDITION TO ANY
OTHER LIMITATIONS ON TRANSFER OR EXERCISE OF THE OPTION OR ISSUANCE OR TRANSFER
OF THE OPTION SHARES IMPOSED BY APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
THE GRANT OF THE OPTION AND THE EXERCISE OF THE OPTION AND THE ISSUANCE OF THE
OPTION SHARES UPON EXERCISE OF THE OPTION AND ANY RESALE OR OTHER TRANSFER OF
SUCH OPTION SHARES BY OPTIONEE SHALL BE SUBJECT TO COMPLIANCE WITH ALL
APPLICABLE REQUIREMENTS OF FEDERAL OR STATE LAW WITH RESPECT TO SUCH SECURITIES.
Notwithstanding any contrary provision of this Agreement:
a. Optionee understands that since the Option is not
transferable, and since the Option Shares have not been and may not be
registered or exempt under applicable statutes, Optionee may bear the economic
risk of the investment for an indefinite period of time. The Option Shares may
not be sold or otherwise disposed of until such time as the Option Shares are
registered under the Securities Act of 1933 ("Securities Act") or the Option
Shares may be sold pursuant to an applicable exemption from the registration
requirements of the Securities Act. Optionee understands that the
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Company has no obligation to file a registration statement under the Securities
Act for the Option or the Option Shares or to otherwise assist Optionee in
complying with any exemption from registration.
b. Optionee represents and warrants that the Option is being
acquired and the Option Shares will be acquired upon exercise for his or her own
account and not with a view to or for sale in connection with any distribution
of such securities. Optionee further acknowledges that any investment in the
Common Stock of the Company is inherently speculative and illiquid and subject
to material risks.
c. As a condition to the exercise of the Option, the Company may
require Optionee to satisfy any qualifications that may be necessary or
appropriate in the sole judgment of the Company or its counsel to evidence
compliance with any applicable law or regulation and to make any written
representation or warranty with respect thereto as may be requested by the
Company.
d. Notwithstanding any contrary provision hereof, the inability
of the Company with reasonable efforts to obtain approval from any regulatory
body having authority deemed by the Company to be necessary for the lawful
issuance and sale of any Option Shares pursuant to the Option shall relieve the
Company of any liability in respect of the non-issuance or sale of the Option
Shares as to which such approval shall not have been obtained.
11.Assignment; Binding Effect.
a. The Company may transfer or assign any of its rights or
obligations under this Agreement or the Plan. Optionee shall have no right to
transfer or assign any of the rights and obligations of Optionee under the
Option or this Agreement, subject to Section 5 hereof in the case of a will or
the laws of descent and distribution.
b. Subject to the foregoing, this Agreement shall inure to the
benefit of and be binding upon each of the parties hereto and the officers,
directors, employees, shareholders, owners, agents, representatives, parents,
subsidiaries, affiliates, successors and assigns of the Company, and the
spouses, representatives, executors, administrators, heirs, devisees, agents,
successors and assigns of Optionee.
12. Representations and Warranties.
a. Optionee represents and warrants that he or she has read the
Plan and this Agreement and has had the opportunity to consult with his or her
legal advisors concerning the legal and tax effects of the Plan and this
Agreement and the Option.
b. Each party represents and warrants that such party has the
full right, power, legal capacity and authority to enter into and execute this
Agreement and to
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discharge all of its obligations under the terms hereof, and that such party
does not have any outstanding obligation and is not a party to any outstanding
agreement which obligation or agreement is inconsistent with this Agreement.
This Agreement has been duly executed and delivered by said party, and
constitutes its valid and legally binding agreement and obligation and is
enforceable in accordance with its terms.
13. Miscellaneous.
a. This Agreement together with the Plan sets forth the entire
agreement of the parties relating to the subject matter hereof, subject to the
provisions of the Plan; and the Plan and this Agreement shall supersede any
prior discussions, understandings and agreements concerning the grant of stock
options or the issuance of option stock between the parties, provided however
that this Agreement shall not supersede and shall be in addition to any separate
fully executed written stock option agreement between the parties pursuant to
any separate stock option grant by the Company. This Agreement may be amended by
further written agreement signed by each of the parties.
b. This Agreement shall be construed in accordance with and
governed by the laws of the State of California without reference to the
principles of conflicts of law.
c. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law. In
the event that any provision of this Agreement shall be held by the final
judgment of a court of competent jurisdiction to be invalid or unlawful or
unenforceable, then the remaining provisions of this Agreement shall remain in
full force and effect and shall be construed to give the fullest effect to the
purpose of the Plan and this Agreement and the intended qualification of the
Plan and this Agreement pursuant to Section 422 of the Code and pursuant to
Section 25102(o) of the California Corporations Code and the respective
regulations and rules thereunder (as amended or superseded).
d. No remedy conferred by this Agreement or the Plan shall be
exclusive of any other remedy, and each and all such remedies shall be
cumulative. The waiver of any breach or violation of this Agreement in whole or
in part shall not operate as a waiver of any subsequent breaches or violations
of the same or a different kind. Any exercise or failure to exercise by a party
of any rights or remedies under this Agreement shall not operate as a waiver of
the right of such party to exercise the same or different rights or remedies in
a subsequent event.
e. Both parties agree to execute any additional documents or
instruments necessary or appropriate to fully effectuate out the purposes of
this Agreement and which are consistent with the Plan.
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f. Section headings in this Agreement are for the convenience of
the parties and are not part of the agreement of the parties and shall not be
used in the construction hereof. Whenever in this Agreement the context
requires, references to the plural shall include the singular and the singular
the plural, and each gender shall include all other genders. No provision in
this Agreement shall be interpreted or construed against any party because such
party or its counsel was the drafter thereof.
g. THIS AGREEMENT AND THE TERMS AND CONDITIONS HEREOF ARE
CONFIDENTIAL AND OPTIONEE SHALL NOT DISCLOSE ANY OF THE TERMS OR CONDITIONS
HEREOF TO ANY OTHER EMPLOYEE OF THE COMPANY OR TO ANY OTHER PERSON FOR ANY
PURPOSE, OTHER THAN TO THE SPOUSE, LEGAL COUNSEL OR ACCOUNTING AND FINANCIAL
ADVISORS OF OPTIONEE, OR TO THE APPROPRIATE EMPLOYEES OR REPRESENTATIVES OF THE
COMPANY AS NECESSARY IN CONNECTION WITH THE ENFORCEMENT, MODIFICATION OR
EXERCISE OF THIS AGREEMENT, OR AS REQUIRED IN CONNECTION WITH LEGAL PROCEEDINGS
IN WHICH OPTIONEE IS A PARTY OR WITNESS.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and delivered in duplicate on its behalf by its duly authorized officer, and
Optionee has also executed and delivered this Agreement in duplicate, all on the
date first above written.
OMNIS TECHNOLOGY CORPORATION
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
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Title: President
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OPTIONEE
/s/ XXXXX XXXXX
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Name: XXXXX XXXXX
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CONSENT OF SPOUSE
I, Xxx X. Xxxxxxxxxxx, the spouse of XXXXX XXXXX ("Optionee"), have read
and approved the foregoing Incentive Stock Option Agreement between Omnis
Technology Corporation ("Company") and my spouse and the Omnis Technology
Corporation 1999 Stock Option Plan. In consideration of granting of the Option
to my spouse to purchase shares of the common stock of the Company under the
terms and conditions in the Agreement and the Plan, I hereby appoint my spouse
as my attorney-in-fact in respect to the exercise of any rights under the
Agreement and the Plan and any stock issued thereunder, and agree to be fully
bound by the provisions of the Agreement and the Plan insofar as I may have any
rights under such Agreement and the Plan or in any stock issued thereunder under
any community property laws or similar laws relating to marital property then in
effect. I further acknowledge that in the event of the exercise of such Option,
such shares of the common stock of said Company shall be issued in the name of
my spouse and that the Company shall have no other obligations with respect
thereto.
Dated: January 5, 2000
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/s/ XXX X. XXXXXXXXXXX
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Name: Xxx X. Xxxxxxxxxxx
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