EXHIBIT 4.1
SIMBA TECHNOLOGIES INC.
INCENTIVE STOCK OPTION PLAN
(Amended and Restated as of June 26, 2000)
1. PURPOSES
The purposes of this Incentive Stock Option Plan (the "Plan") are to
attract and retain the best available people for positions of substantial
responsibility with Simba Technologies Inc. ("Simba"), a subsidiary of Pivotal
Corporation (the "Company"), to provide additional incentives to the directors,
officers and employees of and independent contractors and consultants to Simba
and to promote the success of Simba's and the Company's business by providing to
such persons the opportunity to purchase common shares ("Shares") in the Company
pursuant to options granted hereunder ("Options").
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of Directors ("Board") or a
committee or committees appointed by, and consisting of two or more members of,
the Board (the Board or a committee thereof administering the Plan is referred
to below as the "Administrator"). If and so long as the Shares are registered
under Section 12(b) or 12(g) of the United States Securities Exchange Act of
1934, as amended ("Exchange Act"), the Board shall consider in selecting the
Administrator and the membership of any committee acting as Administrator, with
respect to any persons subject or likely to become subject to Section 16 of the
Exchange Act, the provisions regarding (a) "outside directors" as contemplated
by Section 162(m) of the United States Internal Revenue Code of 1986, as amended
("Code") and "non-employee directors" as contemplated by Rule 16b-3 under the
Exchange Act. The Board may delegate the responsibility for administering the
Plan with respect to designated classes of eligible persons to different
committees consisting of two or more members of the Board, subject to such
limitations as the Board deems appropriate. Committee members shall serve for
such term as the Board may determine, subject to removal by the Board at any
time. To the extent consistent with applicable law, the Administrator may
authorize and designate two officers of the Company, acting together, to grant
Options to individuals eligible to receive grants under the Plan, other than
executive officers or directors of the Company, within the limits specifically
prescribed by the Administrator.
(b) Subject to the terms of the Plan and, in the case of a committee of the
Board, the specific duties delegated by the Board to such committee, and subject
to the approval of any relevant authorities, including the approval, if
required, of any stock exchange or market upon which the Shares are listed or
quoted, the Administrator shall have the authority, in its discretion:
(i) to determine the persons to whom Options may be granted;
(ii) to determine the number of Shares covered by each Option;
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(iii) to determine the exercise price per Share specified in each
Option, based upon the Fair Market Value of the Shares,
determined in accordance with Section 7;
(iv) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of Options granted hereunder or any agreement,
undertaking, representation or covenant required to be executed
in connection with or as a condition of the exercise of any
Option;
(v) to set the time or times at which Options may be granted;
(vi) to approve forms of agreements and instruments under the Plan;
(vii) to amend the terms and conditions of the grant of any Option or
Option agreement and accelerate the vesting of Options;
(viii) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option previously
granted by the Administrator;
(ix) to construe and interpret the terms of the Plan and Options
granted under the Plan;
(x) to prescribe, amend and rescind such rules and regulations
relating to the Plan as it may deem advisable; and
(xi) to make all other determinations deemed necessary or advisable
for administering the Plan.
(c) The interpretation and construction by the Administrator of any
provisions of the Plan or of any Option granted hereunder shall be conclusive
and binding upon the Company and the persons holdings Options ("Optionees"). No
member of the Administrator shall be liable for any action or determination made
in good faith with respect to the Plan or any Option granted under it.
(d) Options granted pursuant to this Plan shall be evidenced by written
stock option agreements or certificates ("Option Certificate"), substantially in
the form attached hereto as Exhibit A, or such other form or forms as the
Administrator may from time to time approve.
3. COMPLIANCE WITH LAWS
Transactions under the Plan are intended to comply with all relevant
provisions of law and the rules and regulations of any stock exchange or market
upon which the Shares may be listed or quoted. To the extent any provision of
the Plan or action by the Administrator fails to so comply, it will be deemed
null and void, to the extent permitted by law and deemed advisable by the
Administrator.
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4. ELIGIBLE PERSONS
(a) The Administrator may from time to time authorize the grant of Options
to anyone who is at the time of such authorization:
(i) an officer or employee (collectively an "Employee") of the
Company or any subsidiary of the Company ("Subsidiary"), meaning
any corporation, partnership, joint venture or other entity in
which the Company owns or controls, directly or indirectly, not
less than 50% of the total combined voting power, and includes a
subsidiary of a subsidiary;
(ii) subject to applicable laws, an independent contractor or other
person providing ongoing consulting services (collectively a
"Consultant") to the Company or a Subsidiary; or
(iii) a member of the Board of the Company or a Subsidiary;
(collectively the "Eligible Persons"). The granting of any Option to an
Eligible Person shall neither entitle him to, nor disqualify him from,
participation in any other grant of Options. Options may be granted to one
or more Eligible Persons without being granted to other Eligible Persons,
as the Administrator may deem fit;
(b) The aggregate number of Shares reserved for issuance upon the exercise
of Options granted to Consultants from time to time shall not exceed 2% of the
issued and outstanding securities of the Company as of the date of the grant of
any Option to a Consultant.
5. STOCK SUBJECT TO PLAN
(a) Subject to the provisions of Section 11 of the Plan, the maximum
aggregate number of Shares which may be optioned by the Company and purchased by
Eligible Persons under the Plan is 320,000 Shares.
The Shares may be authorized but unissued or reacquired Shares, or may be
Shares which have been allotted to a trustee for purposes of issuance under the
Plan. If an Option expires or becomes 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, return to the Plan and become
available for other Options under the Plan.
(b) If the Company purchases Shares from an Eligible Person pursuant to the
terms of a right of purchase or first refusal as hereinafter described, such
repurchased Shares shall be at the Company's discretion either retained or
cancelled by the Company, and, in the event they are retained by the Company,
may become available for other Options under the Plan.
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6. OPTION TERM
The Shares subject to each Option shall vest and the Option shall become
exercisable at the time or times as provided in the Option Certificate. Each
Option shall not be exercisable after the expiration of ten years from the date
granted, subject to earlier termination as provided in Section 9, and may expire
on such earlier date or dates as may be fixed by the Administrator. Any Shares
not purchased prior to expiration of an Option granted hereunder may thereafter
be reallocated and become subject to Options granted in favour of Eligible
Persons in accordance with the provisions of the Plan.
7. OPTION EXERCISE PRICE
(a) In this section and in this Plan "Fair Market Value" means:
(i) if the Shares are listed on a stock exchange or a national market
system, the closing price per Share on the exchange or system as
of the last market trading day prior to the time of
determination, or if no Shares have been traded on such day, then
as of the last previous day for which a trade was reported by
such stock exchange or system;
(ii) if the Shares are regularly quoted by a recognized securities
dealer but selling prices are not reported, the average between
the high bid and low asked prices for the Shares on the last
market trading day prior to the date of determination; or,
(iii) in the absence of an established market for the Shares, the Fair
Market Value thereof shall be determined in good faith by the
Administrator.
(b) The per share Option exercise price for the Shares to be issued upon
exercise of an Option shall be determined by the Administrator; provided,
however, that such price shall in no event be less than the Fair Market Value
per Share less, in the case of an Option which is not an Incentive Stock Option
as defined in the Code, any discount permitted by law and by the regulations,
rules and policies of the securities authorities and stock exchange or market
having jurisdiction over the affairs of the Company; except that the exercise
price shall be 110% of the Fair Market Value per Share in the case of an Option
granted to any person who, at the time the Option is granted, owns shares
possessing more than 10% of the total combined voting power of all classes of
shares of the Company or a Subsidiary.
8. EXERCISE OF OPTION
(a) Subject to the provisions of Section 9 and unless otherwise provided by
the Administrator, each Option granted under the Plan shall be exercisable only
with respect to the portion thereof that is vested in the Optionee to whom the
Option is granted. Unless otherwise provided by the Administrator the right to
exercise any Option shall become vested in increments over a term of four years,
calculated from the date of granting any such Option, according to the following
schedule and subject to the provisions of section 9:
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(i) in the case of Options granted to an Optionee that has not
previously been granted an Option under the Plan:
<TABLE>
Percentage of Option Shares with
Vesting Date (calculated from Date Respect to which Optionee has a
Option Granted) Vested Right to Exercise
-------------------------------------- ---------------------------------------
<S> <C>
First Anniversary 25%
The end of each 6 months following the First 12 1/2%
Anniversary
</TABLE>
(ii) in the case of Options granted to an Optionee that has previously
been granted an Option under the Plan, the Option shall be
exercisable as to 12 1/2% at the end of each 6 month period
calculated from the date the Option is granted.
(b) Any Option may be exercised in accordance with the provisions of this
Plan as to all or any portion of the Shares then exercisable and vested under an
Option, from time to time during the term of the Option. An Option may not be
exercised for a fraction of a share. The exercise at any time or times of a part
of an Option will not exhaust or terminate the Option as to the balance
unexercised; however, any Option not fully exercised within the times set out to
exercise shall automatically expire.
(c) An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company at its principal business office in
accordance with the terms of the Option by the Optionee and full payment for the
Shares with respect to which the Option is exercised and an amount necessary to
satisfy any applicable withholding taxes has been received by the Company,
accompanied by the executed Option Certificate, or other agreement, undertaking,
covenant or representation required by the terms of this Plan or the Option
granted hereunder. Until the Option is properly exercised hereunder and the
Company receives full payment for the Shares with respect to which the Option is
exercised, no right to receive dividends or any other rights as a shareholder
shall exist with respect to the Shares issuable upon exercise of Options. No
adjustment will be made for a dividend or other rights for which the record date
is prior to the date the Option is properly exercised and payment in full is
received except as provided in Section 12.
(d) All Shares purchased on the exercise of Options and any applicable
withholding taxes shall be paid for in full by certified cheque or cash, or such
other consideration having equivalent value at the time of purchase as the
Administrator may determine.
(e) As soon as practicable after any proper exercise of an Option in
accordance with the provisions of this Plan and payment in full for the Shares
with respect to which the Option is exercised, the Company shall deliver or
cause to be delivered to the person that exercised the Option, at the principal
business office of the Company or at such other place as shall be
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mutually acceptable, a certificate or certificates representing the Shares as to
which the Option has been exercised together with the Option Certificate,
endorsed or caused to be endorsed by the Company recording the exercise of the
Option. The time of issuance and delivery of the certificates representing the
Shares may be postponed by the Company for such period as may be required for it
to comply with any law or regulation applicable to the issuance and delivery of
such Shares.
(f) 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.
9. TERMINATION OF SERVICE, DEATH OR DISABILITY
(a) If an Optionee ceases to be continuously engaged by the Company or any
of the Company's Subsidiaries or a Controlled Entity within the meaning under
the Code in the capacity as a director, an officer, an employee, an independent
contractor or a consultant for any reason other than death or permanent and
total disability, no further instalments of his Options that have not vested as
of the date of such termination shall become exercisable. The Optionee shall be
entitled to exercise his Option only to the extent that he was entitled to
exercise it immediately prior to the date of such termination and his right to
exercise such Option shall terminate after the passage of thirty (30) days from
the date of termination or the date of commencement of leave which has not been
approved by the Company under Section 9(c) but in no event later than on the
Option's specified expiration date. To the extent that the Optionee was not
entitled to exercise the Option at the date of such termination, or if he does
not exercise an Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate. If the Optionee ceases to be
employed, engaged or retained by the Company, any Subsidiary or a Controlled
Entity for cause or if any Optionee is removed from office as a director or
becomes disqualified from being a director by law, any Option or the unexercised
portion thereof granted to such Optionee shall terminate at the time of
termination, removal or disqualification.
(b) If an Optionee ceases to serve as a director, an officer or an employee
of or an independent contractor or a consultant to the Company or any of its
Subsidiaries or Controlled Entities due to death or permanent and total
disability, thereby resulting in the termination of his continuous engagement,
the Option may be exercised, to the extent the individual was entitled to
exercise the Option at the date of his termination of such service by death or
disability, but only within twelve (12) months following the date of death or
termination of such service due to disability (subject to and in no event later
than the Option's specified expiration date), by the individual or his personal
representative in the case of disability, or in the case of death by the
individual's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance or the laws of descent and distribution.
(c) For the purpose of the Plan, "continuously engaged" or "continuous
engagement" in the case of a director, an officer or an employee shall mean the
absence of any interruption or termination of employment or service as a
director, an officer or an employee of the Company or
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any of its Subsidiaries, and in the case of an independent contractor or
consultant shall mean the absence of any interruption or termination in the
retainer or engagement other than as a result of termination by effluxion of
time or as a result of other termination on terms agreed to between the
independent contractor or consultant and the Board. Continuous engagement shall
not be considered interrupted in the case of sick leave in excess of the
Company's stated policy on paid sick leave communicated to the Optionee and
approved by the Board, maternity or parental leave in excess of statutory
entitlement approved by the Board or any other leave of absence approved by the
Board or in the case of transfers between locations of the Company or any of its
Subsidiaries or Controlled Entities or in the case of any change in the nature
of service rendered to the Company or any of its Subsidiaries or Controlled
Entities. An Optionee while on any such leave or other leave of absence approved
by the Board shall be entitled to exercise any Options granted to him under the
Plan in respect of and only to the extent that he was entitled to exercise such
Options prior to any such leave and the vesting period shall be suspended during
the period of such leave and shall be extended and the vesting date for the
exercise of any Options shall be delayed by the length of such leave.
10. TRANSFER RESTRICTIONS
(a) Options shall not be sold, transferred, assigned, encumbered or
otherwise disposed of except by will or the laws of intestate succession,
descent and distribution and, except as otherwise provided in Section 9, may be
exercised only by the Optionee.
(b) (i) In connection with any underwritten public offering by the
Company of its Shares, including the Company's initial
public offering, no person shall sell, make any short sale
of, loan, hypothecate, pledge, grant any option for the
purchase of, or otherwise dispose or transfer for value or
otherwise agree to engage in any of the foregoing
transactions with respect to, any Shares acquired upon
exercise of an Option or any right to acquire any Shares
issued under the Plan, without the prior written consent of
the Company or its underwriters. Such limitations shall be
in effect for such period of time from and after the
effective date of such offering as may be requested by the
Company or such underwriters provided, however, that in no
event shall such period exceed one hundred eighty (180)
days. The limitations of this Section 10(b) shall remain in
effect for the two-year period immediately following the
effective date of the Company's initial public offering and
shall thereafter terminate and cease to have any force or
effect.
(ii) Employees of and independent contractors or consultants to
the Company or any of its Subsidiaries shall be subject to
the market stand-off provisions of this Section 10(b)
provided and only if the officers and directors of the
Company are also subject to similar arrangements.
(iii) In the event of any stock dividend, stock split,
recapitalization or other change affecting the Company's
outstanding Shares effected as a class without receipt of
consideration, then any new, substituted or additional
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securities distributed with respect to the Shares shall be
immediately subject to the provisions of this Section 10(b),
to the same extent the Shares are at such time covered by
such provisions.
11. ALTERATION OF CAPITAL
(a) In the event of any increase or decrease in the number of issued Shares
resulting from a share split, share consolidation or share dividend or any other
increase or decrease in the number of issued Shares effected without receipt of
consideration by the Company, then the maximum number of Shares subject to the
Plan as set forth in Section 5(a) and the number of Shares covered by each
outstanding Option as well as the price per Share covered by each outstanding
Option shall be proportionately adjusted by the Administrator, whose
determination in that respect shall be final, conclusive and binding. The
conversion of any convertible securities of the Company shall not be deemed to
have been effected without receipt of consideration.
(b) In the event of a proposed sale of substantially all of the assets of
the Company, or the merger, amalgamation, arrangement or consolidation of the
Company with or into another company, the Administrator may, if it so determines
in the exercise of its sole discretion, either declare that any portion of an
Option that has not vested shall terminate as of a date to be fixed by the
Administrator or give the Optionee the right to exercise his Option as to all or
any part of such Shares as to which the Option has not vested and would not
otherwise be exercisable, or accelerate and reduce the period for the exercise
of those portions of Options that have vested or the vesting date of those
portions of Options that have not vested (provided that the exercise period
shall in no event be reduced to less than 30 days and provided that the
acceleration of vesting or vesting dates shall not occur if, in the opinion of
the Company's outside accountants, it would render unavailable "pooling of
interest" accounting for a transaction that would otherwise qualify for such
accounting treatment) or make such provision as it deems appropriate for the
continuance of outstanding and unexercised Options subsequent to such sale,
merger, amalgamation, arrangement or consolidation, including the assumption of
such Options or substitution of equivalent options by a successor company.
(c) No fractional shares shall be issuable on account of any action
aforesaid, and the aggregate number of shares into which Shares then covered by
the Option, when changed as a result of such action, available to be issued,
shall be reduced to the largest number of whole shares resulting from such
action.
12. DIVIDENDS AND DISTRIBUTIONS
If the Company shall at any time during the period in which Options may be
exercised under the Plan pay any dividend, or make any other distribution,
payable in shares of the Company, the Optionee shall be entitled to receive upon
any exercise thereafter of an Option granted under the Plan (in addition to the
number of shares which the Optionee would have been entitled to receive on
exercise of the Option if such dividend or distribution of shares had not been
paid) such additional number of fully paid and non-assessable shares of the
appropriate
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class as would have been payable on the Shares which would have been issuable on
the exercise of an Option if they had been outstanding on the record date for
the payment of such dividend or distribution, and in the event of the payment of
any dividend or distribution payable in any shares of the Company as aforesaid
the Company will reserve and set aside a sufficient number of shares in which
any such dividend or distribution shall be payable to enable it to fulfil its
obligations hereunder.
13. CONDITIONS UPON ISSUANCE OF SHARES
(a) Shares shall not be issued pursuant to the exercise of an Option unless
the exercise of the Option and the issuance and delivery of Shares pursuant
thereto shall comply with all relevant provisions of law, including, without
limitation, the United States Securities Act of 1933, as amended, the Exchange
Act, the Securities Act (British Columbia) and other applicable provincial
securities laws, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange or market upon which the Shares may then be
listed or quoted, and shall be further subject to the approval of counsel for
the Company with respect to such compliance. Without limiting the foregoing, the
Company's obligation to issue Shares upon the exercise of an Option shall in any
case be subject to the Company being satisfied that the Shares purchased are
being purchased for investment purposes and not for the purpose or with the
intention to sell or distribute such Shares, if at the time of such exercise a
sale or distribution of such Shares would otherwise violate any applicable laws.
(b) As a condition to the exercise of an Option, the Administrator may
require the Optionee to execute such agreements or undertakings, and to make any
representation or warranty to the Company as may in the judgment of counsel for
the Company be required under applicable laws or regulation, including but not
limited to a representation and warranty that the Shares are being purchased
only for investment purposes and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company, such a
representation is appropriate under any applicable laws.
14. ADDITIONAL PROVISIONS CONCERNING U.S. OPTIONEES
(a) Options granted to an Employee (which term includes, without
limitation, an officer or director who is also an Employee) who is a United
States citizen or resident within the meaning of the Code (such Employee
referred to in this Section as a "U.S. Employee") will generally be Incentive
Stock Options as that term is defined in the Code, provided however, that the
Administrator may, at its discretion, at the time of the grant of the Options,
make a determination as to whether the Options will be deemed Incentive Stock
Options or Non-Qualified Stock Options within the meaning of the Code.
Notwithstanding the foregoing, an Option that is an Incentive Stock Option shall
not be granted to an Employee of a Subsidiary unless such Subsidiary is also a
"subsidiary corporation" of the Company within the meaning of Section 424(f) of
the Code or any successor provision.
(b) The maximum aggregate number of Shares which may be subject to Options
that are Incentive Stock Options under the Plan is 320,000 Shares, subject to
adjustment as provided
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in Section 11 and subject to the provisions of Section 422 or 424 of the Code or
any successor provision.
(c) Options granted to an Optionee who is a United States citizen or
resident within the meaning of the Code who is not an Employee will not be
Incentive Stock Options, and any written agreement with such an Optionee for a
grant of Options under the Plan will state that the Options granted thereunder
are Non-Qualified Stock Options for U.S. income tax purposes.
(d) In addition to the terms and conditions of Options granted under the
Plan referred to in the preceding Sections, Options granted to a U.S. Employee
that are granted by the Administrator as Incentive Stock Options will be subject
to the following terms and conditions:
(i)
Options will be designated in the written Option agreement
between the U.S. Employee and the Company as Incentive Stock
Options;
(ii) if the U.S. Employee is directly or indirectly the beneficial
owner of 10% or more of the combined voting power of all classes
of shares in the capital of the Company or a Subsidiary at the
time an Option is granted to the U.S. Employee, the exercise
price of such Option will be equal to at least 110% of the Fair
Market Value of the Shares, determined in accordance with Section
7, and the term of the Option shall be five years from the date
of grant thereof or such shorter term as may be provided in the
Option Certificate;
(iii) Options may not be transferred, assigned or pledged in any manner
other than by will or applicable laws of descent and distribution
and shall be exercisable during the Optionee's lifetime only by
the Optionee; and
(iv) no Options may be granted after the date immediately preceding
the tenth anniversary of the earlier of the date this Plan was
adopted or was approved by the Company's shareholders, except
that if an amendment and restatement of this Plan has
subsequently been approved by the Company's shareholders, no
Options may be granted after the date immediately preceding the
tenth anniversary of the date of such subsequent approval.
(e) If a U.S. Employee is granted Options under the Plan, the written
Option agreement with the U.S. Employee will contain acknowledgements by the
U.S. Employee that:
(i) notwithstanding a designation of Options granted to a U.S.
Employee as Incentive Stock Options, to the extent that the
aggregate Fair Market Value, determined as of the date such
Options were granted, of the Shares issuable on exercise of
Options which are exercisable for the first time by any U.S.
Employee during any calendar year exceeds US$100,000, such excess
Options shall not be treated as Incentive Stock Options; and
(ii) in order for Options granted under the Plan to be treated as
Incentive Stock Options:
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A. Shares purchased on the exercise of an Option must not be
sold or otherwise disposed of within 2 years from the date
the Option was granted, or within 1 year from the date the
Option was exercised; and
B. the U.S. Employee must maintain his status as a U.S.
Employee at all times during the period beginning on the
date the Option is granted and ending 30 days before the
date an Option is exercised.
(f) The acknowledgement of the U.S. Employee in (e)(ii)B above does not
confer upon the U.S. Employee any right with respect to continuation of his
employment relationship with the Company, nor will it interfere in any way with
the Company's right to terminate his employment relationship at any time, with
or without cause.
(g) Unless and until Shares issuable upon the exercise of Options are
registered under the United States Securities Act of 1933, Shares issued under
this Plan to an Optionee who is a resident of the United States of America will
contain the following legend, as amended or supplemented by applicable laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED
OR ASSIGNED EXCEPT (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, IF
AVAILABLE, OR (C) INSIDE THE UNITED STATES (1) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS OR (2) IN A TRANSACTION THAT DOES NOT REQUIRE
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS, AND, IN CONNECTION WITH ANY TRANSFERS PURSUANT TO
(C)(1) OR (C)(2) ABOVE, THE SELLER HAS FURNISHED TO THE COMPANY AN
OPINION OF COUNSEL OF RECOGNIZED STANDING, REASONABLY SATISFACTORY TO
THE COMPANY, TO THAT EFFECT.
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15. TAX CONSEQUENCES OF PLAN
Notwithstanding Section 14, the Company does not assume responsibility for
the income or other tax consequences for Optionees or Eligible Persons under the
Plan and they are advised to consult with their own tax advisors.
16. AMENDMENT AND TERMINATION OF PLAN
(a) The Board may at any time amend, alter, suspend, discontinue or
terminate the Plan. To the extent necessary and desirable to comply with Rule
16b-3 under the Exchange Act or with Section 422 of the Code (or any other
applicable law, rule or regulation, including the requirements of any exchange
or market system on which the Shares are listed or quoted), the Company shall
obtain shareholder approval of any Plan amendment in such a manner and to such a
degree as required by the applicable law, rule or regulation.
(b) Without the written consent of the Optionee, and except as otherwise
permitted herein, any such amendment, alteration, suspension, discontinuance or
termination of the Plan shall not affect Options already granted and such
Options shall remain in full force and effect as if this Plan had not been
amended, altered, suspended, discontinued or terminated.
17. RESERVATION OF SHARES
(a) The Company, during the term of this Plan, shall at all times reserve
and keep available, and if necessary shall allot to a trustee for the benefit of
the Eligible Persons and to facilitate the granting of Options hereunder, the
number of Shares as shall be sufficient to satisfy the requirements of the Plan.
(b) The Company will, if necessary, use its best efforts to seek and to
obtain from appropriate regulatory authorities any requisite authorization in
order to issue and sell such number of Shares as shall be sufficient to satisfy
the requirements of the Plan. The inability of the Company to obtain the
requisite authorization from any regulatory agency having jurisdiction deemed by
the Company's counsel to be necessary to the lawful issuance and sale of any
Shares hereunder or the inability of the Company to confirm to its satisfaction
that any issuance and sale of any Shares hereunder will meet applicable legal
requirements, shall relieve the Company of any liability in respect to the
non-issuance or sale of such Shares as to which such requisite authority shall
not have been obtained.
18. NOTICES
Any notice to be given to the Company pursuant to the provisions of this
Plan shall be addressed to the Company in care of its secretary at its principal
business office in North Vancouver, British Columbia, and any notice to be given
to an Optionee shall be delivered personally or addressed to him at the address
given beneath his signature on his Option Certificate, or at such other address
as such Optionee may hereafter designate in writing to the Company. Any such
notice shall be deemed duly given when made in writing and delivered to the
Company or the Optionee, as the case may be, or if mailed, then on the third
business day
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following the date of mailing such notice in a properly sealed envelope
addressed as aforesaid, registered or certified mail, postage prepaid, in a post
office or post office branch maintained in Canada or the United States of
America.
19. NO ENLARGEMENT OF RIGHTS
(a) This Plan is purely voluntary on the part of the Company, and the
continuance of the Plan shall not be deemed to constitute a contract between the
Company and any Eligible Person, or to be consideration for or a condition of
the acting by an individual as a director, an officer or an employee of or an
independent contractor or a consultant to Simba, the Company or any of its other
Subsidiaries. Nothing contained in this Plan shall be deemed to give any
director, officer or employee the right to be retained in such capacity with
Simba, the Company of any other Subsidiary or successor company, or to interfere
with the right of the Company or any such company or its shareholders to
discharge or retire any director, officer or employee thereof at any time. No
Eligible Person shall have any right to or interest in Options authorized
hereunder prior to the grant of such Option to such Eligible Person, and upon
such grant, he shall have only such rights and interests as are expressly
provided herein, subject however, to all applicable provisions of the Company's
memorandum and articles as the same may be amended from time to time.
(b) Nothing herein contained or done pursuant hereto shall obligate an
Optionee to purchase and/or pay for any Shares, except those Shares in respect
of which the Optionee shall have exercised his Option to purchase hereunder in a
manner hereinbefore provided.
20. FINANCIAL STATEMENTS
The Company shall provide to each Optionee at least annually a copy of the
financial statement for the Company for its last completed financial year in the
form and containing the information required under the British Columbia Company
Act.
21. MISCELLANEOUS
(a) The validity and construction of the Plan shall be governed by and
construed exclusively in accordance with the laws of the Province of British
Columbia.
(b) In this Plan, unless the context otherwise requires, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
22. ADOPTION OF PLAN AND TERMINATION
This Plan shall terminate on July 31, 2006.
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<PAGE>
EXHIBIT A
PIVOTAL CORPORATION
INCENTIVE STOCK OPTION CERTIFICATE
Certificate
Name of Option Holder No. -------------------------------
Date: -----------------------------
Number of Shares
Exercise Price Per Share
Expiry Date
INCENTIVE STOCK OPTION granted by Pivotal Corporation (the "Company") to the
above-named option holder (the "Optionee"), pursuant to Simba Technologies
Inc.'s Incentive Stock Option Plan (the "Plan"), the terms of which are
incorporated herein by reference and which, in the event of any conflict, shall
control over the terms contained herein.
1. Grant and Vesting of Option
Subject to the vesting schedule below, the Company hereby grants to the
Optionee an option to purchase on the terms herein provided a total of the
number of voting common Shares of the Company set forth above, at an exercise
price per Share as set forth above.
This option may be exercised only with respect to the portion thereof that
is vested in the Optionee. The Optionee's rights to exercise this option shall
become vested in increments over a term of four years, calculated from the date
of the granting of this option according to the following schedule:
(i) The following Schedule shall apply if this Certificate relates to the
first grant of an option to the Optionee:
<TABLE>
Percentage of Option Shares with
Vesting Date (calculated from Date Respect to which Optionee has a
Option Granted) Vested Right to Exercise
-------------------------------------- ---------------------------------------
<S> <C>
First Anniversary 25%
The end of each 6 months following the First 12 1/2%
Anniversary
</TABLE>
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<PAGE>
(ii) If this Certificate relates to an Optionee that has previously been
granted an option under the Plan, then the option hereunder shall be
exercisable as to 12 1/2% at the end of each 6 month period calculated
from the date the Option is granted.
In the case of the first grant of an option to an Optionee, vesting rights
shall be calculated only in terms of a full year, in the case of the first
vesting, and thereafter semi-annually (i.e., from one semi-annual date to the
next). In the case of a subsequent grant of an option to an Optionee, vesting
rights shall be calculated semi-annually. No partial vesting credit shall be
given for partial periods.
This option shall expire and shall not be exercisable after the expiry date
set forth above ("Expiry Date").
2. Exercise of Option
Each election to exercise this option shall be in writing in the form
attached hereto, signed by the Optionee or by the person authorized to exercise
this option under paragraph 5 hereof or otherwise permitted under the Plan, and
delivered to the secretary of the Company at its principal office accompanied by
this certificate.
In the event an option is exercised by the executor or administrator of a
deceased Optionee, or by the person or persons to whom the option has been
transferred by the Optionee's will or the applicable laws of descent and
distribution, the Company shall be under no obligation to deliver Shares
thereunder unless and until the Company is satisfied that the person or persons
exercising the option is or are the duly appointed executor or administrator of
the deceased Optionee or the person to whom the option has been transferred by
the Optionee's will or by the applicable laws of descent and distribution.
3. Payment for and Delivery of Shares
Payment in full by cash or a certified bank cheque shall be made for all
Shares for which this option is exercised and any applicable withholding taxes
at the time of such exercise, and no Shares shall be delivered until such
payment is made.
4. Conditions upon Issuance of Shares
This option may not be exercised in whole or in part unless the exercise of
the option and the issuance and delivery of Shares pursuant to it complies with
all relevant provisions of law, including, without limitation, the United States
Securities Act of 1933, as amended, the United States Securities Exchange Act of
1934, as amended, the Securities Act (British Columbia) and other applicable
provincial securities laws, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange or market upon which the Shares may
then be listed or quoted, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. Without limiting the
foregoing, the Company's obligation to issue Shares upon the exercise of this
option shall in any case be subject to the Company being satisfied that the
Shares purchased are being purchased for investment purposes and not for the
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purpose or with the intention to sell or distribute such Shares, if at the time
of such exercise a sale or distribution of such Shares would otherwise violate
any applicable law.
The Optionee shall have no rights of a shareholder of the Company until the
Shares are actually delivered to him.
5. Option not Transferable
Subject to the provisions of the Plan, this option may not be transferred
by the Optionee otherwise than by will or the laws of descent and distribution
and during the Optionee's lifetime this option may be exercised only by him.
6. Termination of Service
If the Optionee ceases to be continuously engaged by Simba, the Company or
any of its other Subsidiaries in the capacity as a director, an officer, an
employee, an independent contractor or a consultant for any reason other than
death or permanent and total disability, the Optionee may exercise this option
not later than 30 days after the date of such cessation but only to the extent
to which he was entitled immediately prior to such cessation. To the extent that
the Optionee was not entitled to exercise this option immediately prior to such
cessation, or if the Optionee does not exercise this option within 30 days of
the date of such cessation, this option shall terminate. If the Optionee ceases
to be employed, engaged or retained by Simba, the Company or any of its other
Subsidiaries for cause or if the Optionee is removed from office as a director
or becomes disqualified from being a director by law, this option shall
terminate forthwith. Nothing herein shall be construed as extending the
exercisability of this option past its Expiry Date.
7. Disability
In the event of the Optionee ceasing to be a director or officer of the
Company or any of its Subsidiaries or in the event of termination of employment
or termination of the independent contract or consulting agreement of the
Optionee, because of permanent and total disability, this option shall terminate
one year after such termination and the Optionee may exercise this option prior
to such time but only to the extent to which he was entitled immediately prior
to such termination because of disability. Nothing herein shall be construed as
extending the exercisability of this option past its Expiry Date.
8. Death
In the event of death of the Optionee while a director, an officer or an
employee of or an independent contractor or consultant to Simba, the Company or
any of its other Subsidiaries, this option shall be exercisable within one (1)
year after his death, provided the option does not expire by its terms prior to
that date, by the executor, administrator or other legal representative of the
estate of the deceased Optionee or the person or persons to whom the deceased
Optionee's rights under the option shall pass by will or the laws of descent and
distribution but only to the extent the deceased Optionee was entitled to
exercise this option immediately prior
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<PAGE>
to his death. Nothing herein shall be construed as extending the exercisability
of this option past its Expiry Date.
9. Alteration of Shares
(a) In the event of any increase or decrease in the number of issued Shares
resulting from a share split, share consolidation or share dividend or any other
increase or decrease in the number of issued Shares effected without receipt of
consideration by the Company, then the number of Shares covered by this option
as well as the purchase price per Share shall be proportionately adjusted by the
Administrator, whose determination in that respect shall be final, conclusive
and binding. The conversion of any convertible securities of the Company shall
not be deemed to have been effected without receipt of consideration.
(b) In the event of a proposed sale of substantially all of the assets of
the Company, or the merger, amalgamation, arrangement or consolidation of the
Company with or into another company, the Administrator may, if it so determines
in the exercise of its sole discretion, either declare that any portion of this
option that has not vested shall terminate as of a date to be fixed by the
Administrator or give the Optionee the right to exercise this option as to all
or any part of such Shares as to which this option has not vested and would not
otherwise be exercisable, or accelerate and reduce the period for the exercise
of those portions of this option that have vested or the vesting date of those
portions of this option that have not vested (provided that the exercise period
shall in no event be reduced to less than 30 days) or make such provision as it
deems appropriate for the continuance of this option if unexercised subsequent
to such sale, merger, amalgamation, arrangement or consolidation, including the
assumption of this option or substitution of equivalent options by a successor
company.
10. Continuance of Employment
This option shall not be deemed to obligate Simba, the Company or any other
Subsidiary to retain the Optionee as a director, an officer, an employee, an
independent contractor or a consultant for any period.
11. Certificate Subject to Terms of Plan
The terms and conditions of this certificate and the agreement constituted
hereby are subject to the provisions of the Plan adopted by the Company as of
June 26, 2000 as amended from time to time, which provisions are incorporated by
reference into this agreement. In the event of an inconsistency between the
provisions of the Plan and this agreement, the provisions of the Plan shall
prevail. The Plan shall be available for review by the Optionee at its principal
office.
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<PAGE>
IN WITNESS WHEREOF, Pivotal Corporation has caused this certificate to be
duly executed. This option is granted on the date first stated above.
PIVOTAL CORPORATION
By:
---------------------------------------
Authorized Signatory
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<PAGE>
RECORD OF PARTIAL EXERCISE
Please do not write in these spaces. Entries will be made by the Company upon
the partial exercise.
--------------------------------------------------------------------------------
Number of Shares Date of Exercise Official Signature
Purchased Under Option
--------------------------------------------------------------------------------
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<PAGE>
FORM OF EXERCISE OF OPTION
(for use by all Optionees other than US Employees)
(for use by US consultants and independent contractors)
Certificate No.--------
To: Pivotal Corporation ("Pivotal")
The undersigned Optionee hereby exercises his/her right to purchase the
following common Shares of Pivotal in accordance with the terms of the Incentive
Stock Option Certificate issued by Pivotal to the Optionee, and by exercising
this Option the undersigned acknowledges and agrees to be bound by the terms of
the Simba Technologies Inc. Incentive Stock Option Plan.
Name of Optionee: --------
Number of Shares for which
this option is exercised: --------
Exercise price per Share: --------
Total Exercise Price: --------
The Option hereby exercised does not constitute an Incentive Stock Option under
the United States Internal Revenue Code.
The Optionee expressly acknowledges that any Shares to be issued and delivered
to the Optionee by Pivotal hereunder are subject to certain limitations and
restrictions on transfer and first refusal rights of purchase in favour of
Pivotal and certain of its shareholders.
The Optionee represents that he/she is purchasing the Shares for which this
Option is exercised for his/her own account and not with a view to or for sale
in connection with any distribution of the Shares.
The Optionee delivers herewith cash or a certified cheque in the amount of the
Total Exercise Price in payment for the Shares for which this option is
exercised.
Dated this -------- day of ----------------,--------.
--------------------------------------------------------------------------------
Signature of Optionee
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<PAGE>
FORM OF EXERCISE OF OPTION
(US Employees only - not consultants or independent contractors)
Certificate No.--------
To: Pivotal Corporation ("Pivotal")
The undersigned Optionee hereby exercises his/her right to purchase the
following common Shares of Pivotal in accordance with the terms of the Incentive
Stock Option Certificate issued by Pivotal to the Optionee, and by exercising
this Option the undersigned acknowledges and agrees to be bound by the terms of
the Simba Technologies Inc. Incentive Stock Option Plan.
Name of Optionee: --------
Number of Shares for which
this option is exercised: --------
Exercise price per Share: --------
Total Exercise Price: --------
The Option hereby exercised DOES/DOES NOT (delete as applicable and initial)
constitute an Incentive Stock Option under the US Internal Revenue Code.
The Optionee expressly acknowledges that any Shares to be issued and delivered
to the Optionee by Pivotal hereunder are subject to certain limitations and
restrictions on transfer and first refusal rights of purchase in favour of
Pivotal and certain of its shareholders.
The Optionee represents that he/she is purchasing the Shares for which this
Option is exercised for his/her own account and not with a view to or for sale
in connection with any distribution of the Shares.
The Optionee delivers herewith cash or a certified cheque in the amount of the
Total Exercise Price in payment for the Shares for which this option is
exercised.
Dated this -------- day of ----------------,--------.
--------------------------------------------------------------------------------
Signature of Optionee
21
