Amended and Restated Nonincentive Stock Option Agreement between Omnis Technology Corporation and Bryce J. Burns

Summary

This agreement is between Omnis Technology Corporation and Bryce J. Burns, a company director. It grants Mr. Burns the option to purchase up to 96,825 shares of company stock at $10.42 per share, following a three-year vesting schedule. The agreement corrects errors in a prior option grant and is governed by the company's 1999 Stock Option Plan. The option is non-transferable, subject to early termination if Mr. Burns resigns before January 31, 2003, and includes important tax and exercise conditions.

EX-10.2 3 0003.txt AMENDED NONINCENTIVE STOCK OPTION AGREEMENT Exhibit 10.2 OMNIS TECHNOLOGY CORPORATION AMENDED AND RESTATED NONINCENTIVE STOCK OPTION AGREEMENT This Nonincentive Stock Option Agreement ("Agreement") is made and entered into as of February 14, 2000 ("Grant Date"), by and between Omnis Technology Corporation, a Delaware corporation (the "Company"), and BRYCE J. BURNS ("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hereof the "Plan" and all section references therein shall be defined as said 1999 Stock Option Plan as amended or superseded during the term of this Agreement.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 director of the Company and this Nonincentive 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 a nonincentive stock option. C. The Company issued an option to Optionee on February 14, 2000 pursuant to the terms of an option agreement dated such date (the "Prior Agreement"). The Prior Agreement, due to mutual mistake of the parties, misstated certain terms and conditions of the option grant. This Agreement corrects such prior misstatements and amends and supersedes the Prior Agreement. 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 a nonincentive stock option ("Option") to purchase up to Ninety Six Thousand Eight Hundred Twenty Five shares (96,825) ("Option Shares") of the common stock of the Company during the Term hereof (as defined in Section 3 hereof) at an Option Price of Ten Dollars Forty Two Cents ($10.42) 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 and to Section 3(b) hereof, Optionee shall have the right to exercise the Option in accordance with the following three (3) year vesting schedule: (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 one-third (1/3d) of the Option Shares upon the expiration of one (1) year from the Grant Date; and 11 (iii) The Option thereafter shall become exercisable with respect to an additional one-thirty-sixth (1/36th) of the Option Shares for each month following the expiration of one (1) year from the Grant Date. 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. a. Subject to earlier termination as provided for in the Plan, the specified term of the Option ("Term") shall be the period commencing as of the Grant Date and ending on the expiration of ten (10) years from the Grant Date. Upon the expiration of the Term or earlier termination of the Option as provided for in the Plan or hereunder, the Option shall cease to be exercisable and shall be of no further force or effect. b. In addition to other events of termination as defined in the Plan, if Optionee voluntarily resigns as a director of the Company on or prior to January 31, 2003, then this Option also shall terminate and cease to be exercisable upon the earlier of (i) the expiration of sixty (60) days from the date of such voluntary resignation or (ii) the expiration date of the Term. No additional right to exercise with respect to any Option Shares shall vest from and after the date of such voluntary resignation. 4. 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. 5. 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. Optionee acknowledges receipt of a copy of the Plan and the opportunity to 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 DIRECTORSHIP OF OPTIONEE PROCEDURES FOR EXERCISING THE OPTION; TAX WITHHOLDING AND NOTICE OBLIGATIONS; AND OTHER SUBSTANTIAL RESTRICTIONS AND OBLIGATIONS IN ADDITION TO THOSE IN THIS AGREEMENT. 6. Tax Status of Option. Set forth below is a brief summary as of the date of this Agreement of some of the federal tax consequences of exercise of the Option and disposition of the Option Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE COMPANY SHALL HAVE NO OBLIGATION TO NOTIFY GRANTEE OF ANY SUCH CHANGES. THE GRANTEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THE OPTION OR DISPOSING OF THE OPTION SHARES. WITHOUT LIMITING THE FOREGOING, THIS SUMMARY DOES NOT DISCUSS THE TAX CONSEQUENCES OF THE EXERCISE OF THE OPTION AND THE DISPOSITION OF THE SHARES UNDER THE LAWS OF THE UNITED KINGDOM OR ANY TAX CONSEQUENCES, IF ANY, TO OPTIONEE. 12 a. The Option is intended to be a nonincentive stock option. Optionee should consult with his or her own tax advisors regarding the tax effects of the Option and other tax consequences of the Option under applicable law, including but not limited to holding period requirements. 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. 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. c. On exercise of a nonincentive stock option, the Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the fair market value (as defined in the Plan) of the Option Shares on the date of exercise over the Option Price. The Company may be required to withhold from the Optionee's compensation or collect from the Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Option Shares if such withholding amounts are not delivered at the time of exercise. d. If Option Shares are held for more than one year, any gain realized on disposition of the Option Shares will be treated as long-term capital gain and will be subject to tax as determined for federal income tax purposes. 7. 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. 13 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); 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. 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. 8. 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. 9. 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 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 14 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. 10. 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 4 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. 11. 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 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. 12. 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, including, without limitation, the Prior Agreement, 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. 15 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, this Agreement, the Code and pursuant to Section 25102 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. 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. 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: _________________________________ Gweyneth Gibbs, President OPTIONEE ______________________________________ 16 BRYCE J. BURNS 17